F\ 


y 


2 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


O' 

I-/ 

122  N.  BROi  AY 

i-CG  AXGELLG.CAU 


r 


OUTLINES 


OF  THE 


LAW  OF  AGENCY 


BY 

FLOYD    R.    MECHEM 

Author  of  "Mechem  on  Agency,"  "Mechem  on  Sales,"  "Mechem 

on  Public  Officers,"  etc.;  Tappan  Professor  of  Law 

in  the  University  of  Michigan 


SECOND     EDITION 


CHICAGO 

CALLAGHAN  &  COMPANY 
1903 


T 


COPYBIGHT    1901 
BY 

FLOYD   R.    MECHBM 


Copyright  1903 

BY 

FLOYD  R.  MECHBM 


7->f 


f 


©v. 


NOTE 


The  following  pages  have  been  printed  to  accompany  the 
writer's  collection  of  Cases  on  Agency,  for  use  in  the  Department 
of  Law  of  this  University.  Nothing  has  been  attempted  beyond 
the  merest  outlines  of  the  subject.  Explanation  as  well  as  Illus- 
tration has  in  general  been  left  to  be  supplied  by  the  cases. 

F.  R.  M. 

University  of  Michigan, 

Ann  Arbor,  January  1,  1903. 


TABLE  OF   CONTENTS. 

[References  are  to  sections.] 


CHAPTER  T. 

DEFINITIONS   AND   DISTINCTIONS. 

Agency  defined    1 

Agency  is  a  contractual  relation 2 

Can  usually  exist  only  by  assent  of  the  principal 3 

Exceptions — Authority   created   by  law 4 

How  agent  compares  with  servant 5 

Distinction  usually  of  little  practical  importance ii 

Occasionally  distinction   important 7 

How  agent  compares  with  "independent  contractor" 

Agency  differs  from  trust 9 

Agency  to  be  distinguished  from  sale 10 

Agency  differs  from  lease 11 

The  contract  appointing — "Power  of  attorney" 12 

Classification  of  agencies — Actual  or  ostensible 13 

Universal,  general  and  special  agency 14-17 

How  to  be  proved 18 

Professional  and   non-professional  agents 19-23 

Distinctions  between  these  classes  of  agents 24-26 

CHAPTER  IT. 

FOR  WHAT  PURPOSES  AN  AGENCY  MAY  BE  CREATED. 

The   general   rule 27 

The  exceptions    2S 

The   first   exception 29 

Illustrations  30 

The  second  exception 31 

How  these  cases  regarded  in  law 32 

Illustrations  33 

Validity  as  between   principal   and   agent 34 

How  when  contract  illegal  in  part 35 

v 


Tl  TABLE    OF   CONTENTS. 

[References  are  to  sections.] 

CHAPTER  III. 
WHO  MAY  BE  PRINCIPAL  OR  AGENT. 

In  general  36 

1.     Who  May  Be  Principal. 

The   general    rule , . .  37 

Rule  applies  to  corporations  and  partnerships 38 

Natural   or  legal   incapacity 39 

Insane  persons  as  principals 40 

Infants  as  principals 41 

Married  women  as  principals 42 

2.     Who  May  Be  the  Agent. 

Less  competence  required  in  agent  than  in  principal 43 

Infant  as  agent 44 

How  authorized    45 

Married  woman  as  agent 46 

As  agent   for   her   husband 47 

Husband  as  agent  for  his  wife 48 

Corporations  as  agents 49 

Partnerships  as  agents 50 

Incapacity  arising  from  adverse   interest 51 

3.     Joint  Principals. 

Agent  may  represent  several  joint  principals. . . .  „  * 52 

Partners,  co-tenants,  etc.  as  principals 53 

Clubs,  societies,  etc.,  as  principals 54 

4.     Joint  Agents. 

Several  agents  may  jointly  represent  the  same  principal 55 

If  the  power  is  joint  and  several 56 

But  where  the  agency  is  one  created  by  law. 57 

CHAPTER  IV. 

OF  THE  APPOINTMENT  OF  AGENTS  AND  THE  EVIDENCE 

THEREOF. 

In  general  58 

1.     How  the  Agent  May  Be  Appointed. 

Usually,  only  by  act  of  principal 59 

The  method  to  be  pursued 60 

1.  Authority  to  execute  instruments  under  seal 61 

How  when  instrument  executed  in  presence  of  principal..  62 

How   corporation    may    appoint 63 

2.  Authority  required  by  statute  to  be  in  writing 64 


TABLE    OF   CONTENTS.  ▼& 

[References  are  to  sections.] 


In  other  cases  authority  may  be  conferred  by  parol. 


65 

-  Need  not  be  express *6 

Doctrine  of  estoppel  applied 67 

General   rule    68 

Limitations  69 

2.     Evidence  of  the   Appointment. 

Authority  not  to  be  proved  by  agent's  admissions 70 

But  agent  may  be  called  as  a  witness 71 

What  constitutes  the  best  evidence 72 

How   question   determined    73 

CHAPTER  V. 

OF  AUTHORITY  BY  RATIFICATION. 

How  question  arises 74 

1.     What  Is  Ratification. 

Ratification   defined    75 

2.     What  Acts  May  Be  Ratified. 

Cn  general,  any  act  which  might  previously  have  been  authorized  76 

Not  void  or  illegal  acts 77 

Forgery    78 

3.     Who  May  Ratify. 

In  general,  any  person  who  might  authorize 79 

State,  corporation,  etc 80 

Infants,    married   women 81 

Agent   82 

4.     Conditions  of  Ratification. 

What  conditions  must  exist 83 

5.     What  Amounts  to  a  Ratification. 

General  rule  84 

Ratification  by  instrument  under  seal 85 

Ratification  by  authority  subsequently  conferred 8G 

Ratification   by   conduct 87 

By  accepting  benefits 88 

By  bringing  suit 89 

By  acquiescence    90-91 

6.     The  Effect  of  Ratification. 

In  general  

Revocability   83 

Effect  as  between  principal  and  agent 94 

Effect  as  to  rights  of  third  party  against  principal 95 

Effect  as  to  rights  of  principal  against  third  party 96 


viii  TABLE    OF   CONTENTS. 

[References  axe  to  sections.] 

Effect  between  agent  and  other  party 9? 

In  tort  a8 

CHAPTER  VI. 
OF  DELEGATION   OF  AUTHORITY  BY  THE  AGENT. 

In  general   " 

Agent  generally  cannot  delegate  authority  to  sub-agent 100-2 

Under  what  circumstances  justified lu3 

Effect  of  appointment   of   sub-agent 104-5 

CHAPTER  VII. 

OF  THE  TERMINATION  OF  THE  AGENCY. 

In  general   1^6 

I.      TERMINATION    BY    ACT   OF   PARTIES. 

What  methods  fall  under  this  head 10? 

Termination  by  original  agreement 108 

Termination  by  subsequent  act  of  parties 109 

1.       Termination  by  Mutual  Consent. 
Agency  may  be  terminated  at  any  time  by  mutual  consent 110 

2.  Revocation  by  Principal. 

Power  of  principal  to  revoke 111-112 

Not  when  coupled  with  interest 113-115 

How   revoke    116 

Notice  of   revocation 117 

3.  Renunciation  by  Agent. 

Power  of  agent  to  renounce  authority 118 

Enforcement  of  contract  of  agency H9 

Agency    at   will 120 

Discharge  of  agent  justified  when  I-1 

Renunciation  by  agent  justified  when 122 

II.      TERMINATION   BY  OPERATION   OF  LAW. 

In  general   J  *° 

Death  of  principal 124 

Death  of   agent 125 

Insanity  of  principal  or  agent 126 

Bankruptcy  of  principal  or  agent I27 

Marriage  of  principal 128 

War    121J 

Destruction  of  subject  matter 130 

Termination  of  power  over  subject  matter — sub  agents 131 


TABLE    OF    CONTENTS.  :x 

(.References  are  to  sections.] 

CHAPTER  VIII. 

OF  THE  NATURE  AND  EXTENT  OF  THE  AUTHORITY. 

Distinctions  132 

Express  authority 133 

Implied    authority    134 

General  authority  13T, 

Special   authority    136 

Appearance  given  to  authority  hy  principal  controls 137 

Distinction  between  authority  and  instructions 1! 

Extent  of  general  authority 13 j 

Known    limitations    140 

Extent    of    special    authority 141 

Incidential  powers   142 

CHAPTER  IX. 

OF  THE  CONSTRUCTION  OF  THE  AUTHORITY. 

What  here  considered 143 

1.     Of  Construction  In  General. 

Necessity  for  construction 144 

Necessity  for  evidence 143 

By  whom   construed — court — jury 1 10 

How  construed    147-14S 

2.     Of  the  Construction  of  Particular  Powers. 

What  here  included 14'J 

Authority  to  sell  land — when  exists 150 

What  included    151 

Authority  to  sell  personal  property 152 

What  included    153 

Authority  to   buy 154 

Authority  to  collect  or  receive  payment 155 

Authority  to  make  negotiable  paper 15G 

Authority  to   manage   business 157 

CHAPTER  X. 
OF  THE  EXECUTION  OF  THE  AUTHORITY. 

In  general   158 

Excessive  or  defective   execution 159 

Execution  of  written  instruments 16U 

Execution  of  sealed  instruments 161 

Execution   of   negotiable   instruments 162 

Execution  of  simple  contracts 163 

Parol  evidence  to  explain 164 


X  TABLE    OF   CONTENTS. 

[References  are  to  sections.] 

CHAPTER  XI. 

OF  THE  DUTIES  OF  THE  AGENT  TO  THE  PRINCIPAL. 

In  general  165 

1.     To  Be  Loyal  to  His  Trust. 

In  general  166 

Incapacity  resulting — cannot  be  agent  of  both  parties 167 

Cannot  deal  with  himself 168 

Voidability  of  transactions 169 

Further   limitations    170 

Usage  does  not  alter  rule 171 

2.     To  Obey  Instructions. 

Agent  must  obey  instructions 172 

Good  faith,  etc. — no  excuse 173 

In  what  form  of  action  liable 174 

Sudden   emergency   as    excuse 175 

Ambiguous  instructions   176 

Effect  of  custom 177 

3.     To  Exercise  Care. 

Duty  to  exercise  care 178 

Special   skill   required   in  some  cases 179 

How   when   services  gratuitous 180 

Negligence  in  loaning  money 181 

Negligence  in  insuring 182 

Negligence  in  collecting 183 

Liability  for  default  of  correspondents 184 

4.    To  Account  for  Money  and  Property. 

Duty  to  keep  accounts 185 

Cannot  deny  principal's  title,  etc 186 

Duty  to  give  notice  of  collections 187 

Agent  must  not  mix  principal's  funds  with  his  own 188 

5.     To  Give  Notice  to  His  Principal. 
Duty  to  give  notice . .  189 

CHAPTER  XII. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THE  AGENT  TO  THIRD 

PERSONS. 

In  general   190 

I.     Liability   in   Contract. 
What  cases   may   occur <, 191 


TABLE    OF    CONTENTS.  H 

[References  we  to  lections.] 

1.    Where  he  makes  a  contract  without  authority. 

Basis  of   liability m 

How  want  of  authority  may  arise 193 

What  forms  present  themselves 19* 

Liability  of  agent 195 

In  what  form  of  action  liable 196 

When  liable  on  the  contract  itself 197 

Limitations    198 

2.     Where  there  was  no  responsible  principal. 

Agent  liable  if  no  principal  in  existence 199 

Principal  dead    200 

3.     Where  agent  pledges  his  personal  responsibility. 

Agent  may  bind  himself 201 

Effect  of  not  disclosing  existence  or  name  of  principal 202-203 

Agent  of  foreign  principal 204 

Presumption  that  principal  was  to  be  bound 205 

Presumption  stronger  in  case  of  public  agent 206 

4.  Where  agent  has  obtained  money  from  third  person. 
When  money  voluntarily  paid  by  mistake  may  be  recovered...   20' 
Money  obtained  illegally 208 

5.  Where  agent  has   received   money  for  third   person. 
Money  delivered  to  agent  by  principal  for  third  person 209 

II.     In  Tort. 
Agent  not  liable  in  tort  for  breach  of  duty  owing  to  principal 

alone    21° 

Non-feasance — mis-feasance    211 

Trespass — Conversion    212 

How  sued   21 


o 


CHAPTER  XIII. 

OF  THE   DUTIES   AND   LIABILITIES   OF  THE   PRINCIPAL   TO 

THE  AGENT. 

In  general  214 

1.     The  Payment  of  Compensation. 

The  right  to  have  compensation  215 

The   amount   of   compensation 21b 

When  compensation  deemed  to  be  earned 217 

Where  authority  terminated  by  the  principal 218 

Where  authority   wrongfully   revoked 219 

Agent's  duty  to  mitigate  his  damages 220 

Where  authority  rightfully   revoked 221 


Xii  TABLE    OF   CONTENTS. 

[References  are  to  sections.] 

Where  authority  terminated  by  operation  of  law 222 

Where  agent  abandons  his  undertaking 223 

Where  agent  acted  for  two  principals 224 

Wbere  agent  violated  his  trust 225 

Where  agency  unlawful 226 

Where    extra    duties    required 227 

Where  agent  holds  over 228 

Recoupment  by  principal 229 

2.     Reimbursement  and   Indemnity  of  Agent. 

Agent's  right  to  reimbursement 230 

Agent's   right  to   indemnity 231 

None   where  act  unlawful 232 

CHAPTER  XIV. 

OF  THE  DUTIES  AND  LIABILITIES   OF  THE  PRINCIPAL  TO 

THIRD   PERSONS. 

In  general   233 

What  questions  arise 234-235 

I.     Liability   for  Agent's  Contract, 
a.     The    disclosed    principal. 

Principal   liable   when 236-237 

b.     The  liability  of  the  undisclosed  principal. 

In  general   238 

Real  principal  liable  when  discovered 239 

Exceptions    240 

When  right  to  be  exercised 241 

To  what  contracts  rule  applies 242 

Agent  also  remains  liable 243 

II.     Responsibility  for  Agent's  Statements,  etc. 
What  statements,  etc.,  bind  the  principal 244-245 

III.     Responsibility  for  Matters  Brought  to  Knowledge  of  Agents. 

When  notice  to  agent  is  notice  to  principal 246-247 

Basis  of  rule 248 

Notice  to  sub-agent 249 

Notice  to  one  of  several  agents 250 

Notice  to  agents  of  corporations 251 

IV.     Liability  for  Agent's  Torts  and  Crimes. 

Foundation  of  liability  for  agent's  torts 252 

Principal's  liability  for  agent's  torts 253-267 

Limitations    ^58 

Principal's  liability  for  agent's  criminal  acts 259 


TABLE    OF   CONTENTS.  xm 

[References  are  to  sections.] 

CHAPTER  XV. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO 

AGENTS. 

In  general  260 

1.  In  Contract 

Agent  usually  no  right  of  action 261 

Sealed  instruments  or  negotiable  instruments  made  in  agent's 

name   262 

Contracts  made  without  disclosing  principal,  etc 263 

What   defences  may  be  made 264 

2.     In  Tort. 

What  actions  maintainable 255 

CHAPTER  XVI. 

OF  THE   DUTIES   AND   LIABILITIES  OF  THIRD   PERSONS  TO 

THE    PRINCIPAL. 

In  general  266 

1.  In  Contract. 

What  contracts  principal  may  enforce 267 

What   defences    open 268 

Right  to  follow  and  recover  money  or  property 269 

Right  to  rescind  unauthorized  dealings 270 

2     In    Tort. 

Right  to  recover  damages   for  collusion 271 

Recovery  for  enticing  agent  away,  disabling  him,  etc 272 

CHAPTER  XVII. 

OF  SPECIAL  CLASSES  OF  AGENTS. 

In    general    273 

1.     Of  Attorneys  at  Law. 

Relation  of  attorney  to  client 274 

How   appointed    275 

Duration  of  relation 276 

Implied   powers  of  attorney 277 

Attorney  bound  to  utmost  loyalty  and  honor 

Dealings   between  attorney  and  client 

Confidential  communications  privileged 2S0 

Liability  of  attorney  to  client 281 


xiY  TABLE    OF   CONTENTS. 

[References  are  to  sections.] 

Liability  of  attorney  to  third  persons 282 

Attorney's  right  to  compensation 283 

Contingent   compensation 284 

How  reasonable  value  shown 285 

Attorney  entitled  to  reimbursement  and  indemnity 286 

Attorney's   lien    287 

2.     Of   Auctioneers. 

How  authorized  288 

Terms    of   sale 289 

Implied  powers    290 

Duties   to    principal 291 

Liability  to  third  persons 292 

Compensation  and  lien 293 

Liability  of   principal 294 

3.  Of  Brokers. 

How  appointed    295 

Implied    powers     296 

Same  subject 297 

Duties  to   principal 298 

Acting  for  both  parties 299 

Liability  to  third  persons 300 

Compensation 301-302 

Compensation  from   both   parties 303 

Reimbursement,  indemnity  and  lien 304 

4.  Of  Factors. 

How   appointed    305 

Implied  powers    306 

Duties   to   principal 307 

Same  subject    308 

Duty  to  account 309 

Compensation,  reimbursement,  lien 310 

Right   to   sue 311 


TABLE   OF   CASES. 


[References  are  to  sections.) 


Adams  v.  Cost  (62  Md.  2G4),  258. 
Adams  v.  Fraser   (82  Fed.  Rep. 

211),  192,  297. 
Adams  v.  Power  (52  Miss.  828), 

85. 
Adams    Express    Co.    v.    Harris 

(120  Ind.  73),  244. 
Addison  v.  Gandasequl  (4  Taunt. 

573),  239. 
Adrian  v.  Lane  (13  S.  C.  183),  153. 
Akers  v.  Rowan  (33  S.  Car.  451), 

247. 
Alabama,  etc.,  R.  Co.  v.   South, 

etc.,  R.   Co.    (84  Ala.  570),  63, 

64. 
Albert   v.   Mutual   Life  Ins.   Co. 

(122  N.  C.  92),  244. 
Allen  v.  McKibben  (5  Mich.  449), 

223. 
Allen  v.  South  Boston  R.  Co.  (150 

Mass.  200),  247,  251. 
Allen  T.  Whitlark  (99  Mich.  492), 

220. 
Alpers  v.  Hunt  (86  Cal.  78),  33. 
Alworth   v.    Seymour    (42   Minn. 

526),  114,  115,  119. 
Amans   v.    Campbell    (70    Minn. 

493),  202. 
American     Exchange     Bank     v. 

Loretta    Mining    Co.    (165    111. 

103),  83. 
American    Surety    Co.    v.    Pauly 

(170  U.  S.  133),  189,  251. 
Andrews   v.    Kneeland    (6    Cow. 

(N.  Y.)  354),  297. 
Appleton  Bank  v.  McGiloray   (4 

Gray  518),  100. 


Arbuckle     v.     Kirkpatrick     (98 

Tenn.  221),  10. 
Aeff  v.  Ins.  Co.    (125  N.  Y.  57), 

257. 
Argersinger  v.  Macnaughten  (114 

N.  Y.  535),  306. 
Armitage    v.    Widoe    (36    Mich. 

124),  41,  77,  81. 
Armstrong  v.  Lowe  (76  Cal.  616), 

150. 
Ash  v.  Gine  (97  Penn.  St.  493), 

54. 
Ashley  v.  Bird  (1  Mo.  640),  150. 
Askey  v.  Williams  (74  Tex.  294), 

41. 
Ass'n  v.  Friedley  (123  Ind.  143), 

281. 
Atkins  v.  Lewis  (168  Mass.  534). 
Atlantic  Mills  v.  Indian  Orchard 

Mills   (147  Mass.  268),  247. 
Atlee  v.   Bartholomew   (69  "Wis. 

43),  96. 
Atlee  v.  Fink   (75  Mo.  100),  33, 

167. 
Atwell    v.    Jenkins    (163    Mass. 

363),  282. 
Augusta,  etc.  R.  Co.  v.  Kittel  (52 

Fed.  Rep.  63),  90. 
Austrian   v.   Springer    (94   Mich. 

343),  139,  142. 

Babbitt    v.    Bumpus    (73    Mich. 

331),   281. 
Badger  Silver  Min.  Co.  v.  Drake 

(31   C.   C.  A.  378),  242. 
Bailie  v.  Augusta  Sav.  Bank  (95 

Ga.  277). 


IV 


in 


TABLE    OF    CASES. 


[References  are 

Baird  v.  Shipman   (132  111.   18), 

211. 
Baker  v.  Drake   (53  N.  Y.  221), 

298. 
Baker  v.   Humphrey   (101   N.  S. 

494),  278. 
Baker   -.    N.    Y.    Bank    (100   N. 

Y.  31),  269. 
Balderston    v.    National    Rubber 

Co.   (18  R.  I.  338),  309,  310. 
Baldwin   v.    Burrows    (47   N.   Y. 

199),  83. 
Baldwin  v.  Leonard  (39  Vt.  260), 

202. 
Baldwin  v.  Potter   (46  Vt.  403), 

185. 
Bell  v.   McConnell    (37  Ohio  St. 

396),  299,  303. 
Baltimore  &  Ohio  Em.  Rel.  Assn. 

v.  Post  (122  Pa.  St.  579),  5,  70. 
Baltimore  Trust  Co.  v.  Hamble- 

ton  (84  Md.  456),  256. 
Bancroft    v.    Scribner    (72    Fed. 

Rep.   988),   101. 
Bank   v.    Bank    (13   Bush    (Ky.) 

526),  94. 
Bank  v.  Railroad  Co.  (106  N.  Y. 

195),  253. 
Bank   of  Hamburg   v.   Wray    (4 

Strob.    (S.  Car.)    L.  87),  195. 
Bank  of  Owensboro  v.  Western 

Bank  (13  Bush  (Ky.)  526),  181. 
Bannon    v.    Aultman    (80    Wis. 

307),  153. 
Barker  v.  St.  Louis,  etc.  R.  Co. 

(126  Mo.  143),  245. 
Barnard  v.  Coffin  (141  Mass.  37), 

105. 
Barnes  Safe  Co.  v.   Block  Bros. 

Co.  (38  W.  Va.  158),  306. 
Barr  v.  Schroeder  (32  Cal.  609), 

15. 
Barret  v.  Rhem   (6  Bush   (Ky.) 

466),  103. 
Barron  v.  Willis  (2  Ch.  121),  279. 


to  sections.] 

Earry  v.  Schmidt  (57  Wis.  172), 

167. 
Barthell  v.  Peter  (88  Wis.  316), 

217. 
Bartlett    v.    Savings    Bank    (79 

Cal.  218),  283. 
Bartlett    v.    Sparkman    (95    Mo. 

136),  175. 
Basket  v.  Moss  (115  N.  C.  448), 

33. 
Bass  Furnace   Co.    v.   Glasscock 

(82  Ala.  452),  121. 
Bates  v.  American  Mortgage  Co. 

(37  S.   Car.   88),   249. 
Baxter    v.    Sherman    (73    Minn. 

434),  268. 
Eeal  v.  Polhemus  (67  Mich.  130), 

33. 
Beebe   v.    Board    of   Supervisors 

(64  Hun.  377),  33. 
Belfield   v.   National   Supply  Co. 

(189  Pa.  189),  240,  268. 
Eeliveau  v.  Amoskeag  Co.  (68  N. 

H.  225),  41,  277. 
Bell  v.   McConnell    (37  Ohio  St. 

396),  51,  224. 
Bell's  Gap  R.   R.  Co.  v.  Christy 

(79  Penn.  St.  54),  83. 
Benjamin  v.  Benjamin  (15  Conn. 

347),  47. 
Benjamin  v.  Dockham  (134  Mass. 

418),  47. 
Bennet    v.    Lathrop    (71    Conn. 

613),   54. 

Bennett  v.  Gillett  (3  Minn.  423), 
45. 

Beymer  v.   Bonsall    (79   Pa.    St. 
298),  240. 

Beymer  v.  Bonsall  (79  Penn.  St. 
298),  243. 

Bibb   v.   Allen    (149   N.   S.    481), 
230,  231,  295. 

Bickford   v.    Menier    (107   N.   Y. 
490),  69,  134. 


TABLE    OF    CASES. 


A  V  I  1 


[References  are  to  lectlonB.] 


Bierman   v.   City   Mills    (151    N. 

Y.  482),  83,  153. 
Bigler   v.   Baker   (40   Neb.   325), 

62. 
Billings  v.  Mason   (80  Me.  496), 

153. 
Billings  v.  Morrow  (7  Cal.  171), 

150. 
Birdsall  v.  Clark  (73  N.  Y.  73), 

100. 
Bishop  v.   American  Preserver's 

Co.   (157  111.   2S4),  119. 
Blackstone    v.    Buttermore     (53 

Penn.  266),  115. 
Blatzen  v.  Nicolay  (53  N.  Y.  467), 

198. 
Blood  v.  French  (9  Gray  (Mass.) 

197),  290. 
Boardman     v.     Taylor     (66    Ga. 

638),  246. 
Boinert  v.  Leignez   (2  Rich.    (S. 

C.)   L.  464),   290. 
Boland   v.   Glendale   Quarry  Co. 

(127  Mo.  520),  219. 
Bolton  v.  Lambert  L.  R.  (41  Ch. 

Div.  295),  96. 
Borland  v.  Nevada  Bank  (99  Cal. 

89),  245. 
Boston   v.   Simmons    (150    Mass. 

461),  271. 
Bowen  v.   Bowen    (74  Ind.  470), 

216. 
Bowermann    v.    Rogers    (125    U. 

S.  585),  178. 
Bowman  v.  Officer  (53  Iowa  640), 

170. 
Bowman    v.    Phillips    (41   Kans. 

364),  33,  283. 
Boyd    v.     Cochrane     (18    Wash. 

281),  33. 
Brackenridge     v.     Claridge     (91 

Tex.  527),  301. 
Bradford    v.   Hanover    Ins.     Co. 

(102  Fed.  Rep.  48),  104. 

2 


Bradford  v.  Kimberly  (3  Johns. 

Ch.  431),  215. 
Brannan  v.  Strauss  (75  111.  234), 

221. 
Brant   v.   Gallup    (111    111.    487), 

182. 
Brawnn    v.    Keally    (146   Pa.    St. 

519),  10. 
Brewer  v.    Sparrow    (7    Barn.   & 

Cres.  310),  77,  94. 
Bridge  Co.  v.  Geisse  (38  N.  J.  L 

39),  72. 
Briggs  v.   Partridge    (64    N.    Y. 

357),  164,  242. 
Britton  v.  Turner  (6  N.  H.  481), 

223. 
Brockway  v.  Mullin  (46  N.  J.  I.. 

448),  157,  236. 
Brothers  v.  Bank  (S4  Wis.  381). 

246. 
Brown  v.  Bradlee  (156  Mass.  28), 

163. 
Brown   v.    First   National   Bank 

(137  Ind.  655),  33. 
Brown   v.   Iron   &   Coal   Co.    (18 

C.  C.  A.  444),  246. 
Brown   v.    Rundlett    (15    N.    H. 

360),   239. 
Brown  v.  Wilson  (45  S.  Car.  519), 

87. 
Brown  v.   Wright   (58  Ark.  20), 

83. 
Bruley  v.  Garvin  (105  Wis.  628), 

280. 
Bryant    v.    Moore    (26    Me.    S4), 

136,  138,  139,  141. 
Bryant  v.  Rich   (106  Mass.  180), 

255. 
Buckley  v.  Gray   (110  Cal.  339). 

282. 
Euckley  v.  Humanson  (50  Minn. 

195),  226. 
Bulwinkle  v.  Cramer  (27  S.  Car. 

376),  164. 


XY111 


TABLE    OF    CASES. 


[References  are 

Burrill  v.  Bank  (2  Mete.  (Mass.) 

163),  63. 
Busch  v.  Wilcox  (82  Mich.  336), 

83. 
Bush  v.  Cole  (28  N.  Y.  261),  289, 

292. 
Bush  v.  Wilcox  (82  Mich.  336), 

133. 
Butler  v.   Baker   (17  R.   I.  582), 

217. 
Butler  v.  Dorman  (68  Mo.  298), 

155. 
Butler  v.  Fayerweather  (33  C.  C. 

A.  625),  280. 
Butler  v.  Maples   (9  Wall.  766), 

14,  135. 
Butts  v.  Phelps  (79  Mo.  302),  183. 
Byington  v.  Simpson  (134  Mass. 

169),  242. 
Byrd  v.  Hughes  (84  111.  174),  33, 

51. 


Cadigan  v.  Crabtree  (179  Mass. 
474),  302. 

Camden  Safe  Deposit  Co.  v.  Ab- 
bott (44  N.  J.  L.  257),  147. 

Cameron  v.  Kenyon-Connell 
Com.   Co.    (22  Mont.   312),  211. 

Campbell  v.  Foster  Home  Assn. 
(163  Pa.  St.  609),  148,  151. 

Campbell  v.  Portland  Sugar  Co. 

(62  Me.  552),  211,  213. 
Cannell   v.   Smith    (142   Pa.   25), 
224,  299. 

Carr  v.  National  Bank  &  Loan 
Co.   (167  N.  Y.  375),  51,  167. 

Carroll   v.   East   Tennessee,   etc. 

R.  Co.  (82  Ga.  452),  245. 
Carroll  v.  Welch   (26  Tex.  147), 

221,  223. 
Carter  v.  Southern  Ry.  Co.   (Ill 

Ga.  38),  263. 
Cashman  v.  Root   (89  Cal.  373), 


to  sections.] 

Cassidy  v.  McKenzie  (4  Watts  & 

Serg.    (Pa.)   282),  124. 
Central  etc.  Ry.  Co.  v.  Price  (106 

Ga.  176),  100. 
Central  R.  &  B.  Co.  v.  Cheatham 

(85  Ala.  292),  90. 
Central  Stock  Exchange  v.  Ben- 

diger  (48  C.  C.  A.  726). 
Central   Trust   Co.    v.    Asheville 

Land  Co.    (72   Fed.   Rep.  361), 

90. 
Chadwick    v.    Knox    (31    N.    H. 

226),  215. 
Chambers  v.  Sray  (73  Ala.  873), 

115. 
Chappie  v.  Cooper  (13  M.  &  W. 

252),  41. 
Charlotte  Oil  Co.  v.  Hartog  (29 

C.  C.  A.  56),  307. 
Chicago  etc.   R.  Co.   v.  Dickson 

(63  111.  151),  254. 
Chicago  etc.  Ry.  Co.  v.  Fiexman 

(103   111.   546),   255. 
City  of  Findlay  v.  Pertz   (13  C. 

C.  A.  559),  271. 
Claflin    v.    Lenheim    (66    N.    Y. 

301),  117. 
Clark  v.  Cumming   (77  Ga.  64), 

295. 
Clark  v.  Marsiglia  (1  Denio  317), 

111. 
Clark    v.    O'Rourke    (111    Mich. 

108),  199. 
Clark  v.   Randall    (9   Wis.   135), 

286. 
Clark  v.  Slate  Valley  R.  Co.  (136 

Pa.  408),  38. 
Clealand    v.    Walker     (11    Ala. 

1058),  240. 
Cleghorn  v.  Castle  (13  Hawaiian 

186),  9. 
Cleveland  v.  Pearl  (63  Vt.  127), 

141,  239. 
Cleveland  etc.  Ry.  Co.  v.  Closser 

(126  Ind.  348),  244. 


TABLE    OF    CASES. 


XIX 


[References  are  to  sections.] 


Cobb  v.  Knapp   (71  N.  Y.  349), 

202. 
Cockeroft    v.    Muller    (71    N.    Y. 

367),  294. 
Codding    v.    Munson     (52     Neb. 

580),  199. 
Coe  v.  Smith   (4  Ind.  82),  223. 
Combes  Case    (9  Co.   76,   b),  29. 
Combs  v.  Scott  (12  Allen  (Mass.) 

493),  83. 
Comer   v.    Way    (107   Ala.   300), 

308,  310. 
Commercial    Bank    v.    Burgwyn 

(110  N.  Car.  267),  251. 
Commercial    Bank    v.    Hurt    (99 

Ala.  130),  306. 
Commercial  Electric  L.  &  P.  Co. 

v.  Tacoma  (20  Wash.  288),  80. 
Commonwealth     v.    Joslin     (158 

Mass.  482),  259. 
Commonwealth  v.  Press  Co.  (156 

Pa.  St.  516),  33. 
Commonwealth  v.   Stevens   (153 

Mass.  421),  259. 
Congar  v.  Chicago  etc.  R.  Co.  (24 

Wis.  157),  246. 
Consolidated  Co.  v.  Curtis  (1  Q. 

B.  495),  292. 
Constant  v.   University   (111  N. 

Y.  604),  246. 
Conway    v.    Lewis    (120   Pa.    St. 

215),  307. 
Cook  v.  Hopper  (23  Mich.  511), 

282. 

Cook   v.    Tullis    (18   Wall.    332), 
S3,  92. 

Cooley  v.  Betts  (24  Wend.  203), 
309. 

Cooper  v.  Hill  (36  C.  C.  A.  402), 
251. 

Coquillard   v.    French     (19     Ind. 
274),  150. 

Corbitt  v.  Timmerman  (95  Mich. 
581),  275. 


Cordross's     Settlement     (7     Ch. 

Div.  728),  44. 
Cort.  v.   Lassard   (13  Oreg.  221), 

119. 
Cosgrove    v.    Ogdc-n    (49    N.    Y. 

255),  253. 
County  of  Colusa  v.  Welch  (122 

Cal.  428),  33. 
Coursoile    v.     Weyerhauser     (69 

Minn.  328),  41. 
Court   v.    Snyder    (2    Ind.    App. 

440),  153. 
Co\  entry   v.    Barton    (17   Johns. 

142),  232. 
Cox  v.  Hoffman   (4  Dev.  &  Bat. 

(X.  C.)  180),  47. 
Cox   v.  Pearce    (112   N.   Y.   637), 

248. 
Craig  v.  Chambers  (17  Ohio  St. 

253),  179. 
Craighead  v.  Peterson  (72  N.  Y. 

279),  14S. 
Craker  v.   Chicago  etc.   Ry.   Co. 

(36  Wis.  657),  255. 
Cram  v.  Sickel  (51  Neb.  828),  £3, 

155. 
Crane  v.  Gruenewald   (120  N.  Y. 

274),  155. 
Cribben   v.    Deal    (21    Ore.    211), 

61. 
Crisup    v.    Grosslight    (79    Mich. 

3S0),   33. 
Cummins  v.  Heald  (24  Kan.  600). 

103,  184. 
Cunningham   v.  Jones    (37  Kan. 

477),  278. 
Curtis   v.   Williamson   (L.  R.   10 
Q.  B.  57),  240. 

Dale   v.   Donaldson   Lumber  Co. 

(48  Ark.  18S),  195. 
Daniels  v.  Erodie  (54  Ark.  216), 

83. 
Dansereau  v.  St.  Louis  (18  Can. 

S.  Ct.  R.  587),  33. 


XX 


TABLE    OF    CASES. 


[References  are  to  sections.] 


D'Arcy  v.  Lyle   (5  Binney  441), 

232. 
Darlington's   Estate    In   re    (147 

Pa.  624),  278. 
Davis    v.    Hamlin    (108    111.    39), 

51,  168. 
Davis    v.    King    (66    Conn.    465), 

100,  104. 
Davis  v.  Kline  (96  Mo.  401),  278. 
Davis   v.    Kobe    (36   Minn.    214), 

308. 
Davis  v.  Webber   (66  Ark.  190), 

283,  285. 
Davison    v.    Holden    (55    Conn. 

103),  54. 
Daylight    Burner    Co.    v.    Odlin 

(51  N.   H.  56),  153,  296. 
Deakin  v.  Underwood  (37  Minn. 

98),  50,  56. 
De  Cordova  v.  Barnum   (130  N. 

Y.   615),   295. 
Deering  Co.  v.  Cunningham   (63 

Kan.  174),  33. 
De  Forest  v.  Bates  (1  Edw.  (N. 

Y.)    Ch.   394),  113. 
Deitz   v.    Insurance   Co.    (31   W. 

Va.  851),  263. 
Delafield  v.  Smith  (101  Wis.  664), 

296. 
Delaney   v.   Rochereau     (34    La. 

Ann.  1123),  98,  211. 
Delano  v.  Jacoby   (96  Cal.  275), 

150. 
Dcvall  v.    Burbridge  (4  Watts  & 

S.    (Pa.)  305),  189. 
Denning  v.  Yount  (62  Kan.  217), 

226. 
Dent  v.  McGrath  (3  Bush   (Ky.) 

174). 
Dewerse  v.  Whiff   (57  Neb.  17), 

124. 
Dick  v.  Page  (17  Mo.  234),  124. 
Dickson    v.    Kittson     (75     Minn. 

168),  33. 


Diefenback   v.    Stark     (56    Wis. 

462),  223. 
Dieringer  v.  Meyer  (42  Wis.  311), 

121. 
Dierstein  v.  Schubkagel  (131  Pa. 

46),  280. 
Dillenback    v.    Jerome    (7    Cow. 

(N.    Y.)    294),   265. 
Dillaway  v.   Butler     (135    Mass. 

479),  247. 
Distilled  Spirits  Case   (11  Wall. 

367),   246. 
Diversy  v.  Kellogg  (44  111.  114), 

153. 
Dixon  v.  Bristol  Sav.  Bank  (102 

Ga.  461),  87. 
Dodd  v.  Farlow   (11  Allen  426), 

290,  297. 
Dodge  v.  Hopkins  (14  Wis.  686), 

96. 
Dolan  v.   Thompson    (126   Mass. 

183),  308. 
Doremus   v.    Hennessy    (176   111. 

608),  272. 
Dorr  v.   Life  Ins.  Co.   (71  Minn. 

38),  251. 
Dorrah   v.    Hill    (73   Miss.    787), 

269. 
Doty  v.  Wilder  (15  111.  407),  288. 
Doubleday   v.    Kress    (50    N.    Y. 

410),  155. 
Donghaday  v.  Crowell  (11  N.  J. 

Eq.  201),  83. 
Downey  v.  Burke   (23  Mo.  228), 

223. 
Dows  v.  Glaspel  (4  N.  Dak.  251), 

33. 
Dresser  v.  Norwood  (17  Com.  B. 

(U.  S.)  466),  246. 
Drew  v.  Nunn  (4  Q.  B.  Div.  661), 

40,  126. 
Drover's  Nat.  Bank  v.  Roller  (85 

Md.  495),  308. 
Drury  v.  Foster  (2  Wall.  24),  61, 

81. 


TABLE    OF    CASES. 


xxi 


[References  are  to  sections.] 


Dudley  v.  Collier  (87  Ala.  431), 

33. 
Duffy   v.   Hobson    (40   Cal.   240), 

150. 
Duke  v.  Harper  (66  Mo.  51),  284. 
Duncan  v.   Baker   (21  Kan.  99), 

223. 
Dundee  Mortg.  Co.  v.  Hughes  (20 

Fed.  Rep.  39),  210. 
Durant  v.  Roberts  (1  Q.  B.  629), 

83. 
Durkee  v.  Gunn   (41  Kan.   496), 

115. 
Duval    v.   Wellman    (124   N.    Y. 

156),  33. 
Dyer  v.  Duffy   (39  W.  Va.  148), 

141. 

Eastman  v.  Relief  Assn.  (65  N. 

H.   176),  83. 
Eberts  v.  Selover  (44  Mich.  519), 

83. 
Edward  v.  Randle  (63  Ark.  318), 

33. 
Edwards  v.  Dillon  (147  111.  14), 

153. 
Eggleston      v.      Boardman     (37 

Mich.  14),  216,  285. 
Eichengreen  v.  Railroad  Co.  (96 

Tenn.  229),  253. 
Elkhart  County  Lodge  v.  Crary 

(98  Ind.  238),  33. 
Ellis   v.   McNaughton    '76   Mich. 

237),  211. 
Ellis   v.    Pond    Syndicate    (1    Q. 

B.  426),  304.' 
Elmore  v.  Johnson  (143  111.  513), 

279. 
Elwell   v.    Shaw    (16   Mass.    42), 

161. 
Embrey   v.   Jemison    (131   N.   S. 

336),  33. 
Enos   v.    St.   Paul    etc.    Ins.    Co. 

(4  S.  Dak.  639),  189. 
Eoff  v.  Irvine  (108  Mo.  378),  218. 


Exchange  Nat.  Bank  v.  National 
Bank   (112   U.  S.  276),  1C3. 

Exchange  Nat.  Bank  v.  Third 
Nat.  Bank  (112  U.  S.  276),  184. 

Fairchild  v.  McMahon  (139  N.  Y. 

290),  256. 
Fairfield  Savings  Bank  v.  Chase 

(72  Me.  226),  246. 
Fairlie  v.  Fenton  (L.  R.  5  Exch. 

169),  304. 
Fairly   v.   Wappoo   Mills    (44   S. 

Car.  227),  295. 
Farebrother  v.  Ansley  (1  Camp. 

343),  292. 
Farmer's  Bank  v.  King  (57  Penn. 

202),  188,  269. 
Farmers'  Co-operative  Trust  Co. 

v.    Floyd    (47    Ohio    St.    525), 

192,  195. 
Farmers'  Co-operative  Trust  Co. 

v.  Floyd  (47  Ohio  St.  525),  195. 
Farmers'   Loan   &   Trust   Co.    v. 

Wilson  (139  N.  Y.  284),  124. 
Farnsworth  v.  Hemmer  (1  Allen 

(Mass.)   494). 
Farr  v.  John  (23  Iowa  286),  289. 
Farrell    v.    School    District    (98 

Mich.  43),  220. 
Ferchen  v.  Arndt  (26  Ore.  121), 

309. 
Ferguson   v.   Gooch    (94  Va.    1), 

299. 

Ferguson  v.  McBean  (91  Cal.  63), 
239. 

Ferris  v.  Snow  (—  Mich.  — ), 
83. 

Fifth  Ave.  Bank  &  Forty-second* 
Street,  etc.,  Ry.  Co.  (137  N.  Y. 
231),  253. 

First  Nat.  Bank  v.  Hummel  (14 
Colo.  259),  269. 

First  National  Bank  v.  Mt. 
Tabor  (52  Vt.  87),  57. 


XXII 


TABLE    OF    CASES. 


[References  are  to  sections.] 


First    National    Bank    v.    Ocean 

National  Bank  (60  N.  Y.  295), 

180. 
First  National  Bank  v.  Sckween 

(127  111.  573),  306. 
First  National  Bank  v.  Sprague 

(34  Neb.  318),  184. 
Fish  v.   Kelly    (17  Com,   B.    (N. 

S.)    194),  210. 
Fitzhugh    v.    Wiman    (9    N.    Y. 

559),  311. 
Floyd  v.  Patterson  (72  Tex.  202), 

186. 
Forbes  v.  Hagman  (75  Va.  168), 

80. 
Foster   v.    Bates    (12    M.    &   W. 

225),  83. 
Foster  v.  Essex  Bank  (17  Mass. 

479),  180. 
Toster  v.  Preston   (8  Cowen   (N. 

Y.)  198),  183. 
Foster  v.  Smith  (2  Cold.  (Tenn.) 

474),  175. 
Fradley  v.  Hyland  (37  Fed.  Rep. 

49),  240. 
Franklin  Fire  Ins.  Co.  v.  Brad- 
ford  (201  Pa.   32),  104. 
Fredenhall  v.   Taylor     (26    Wis. 

286),  199. 
Frenkel  v.  Hudson  (82  Ala,  158), 

247. 
Friedlander  v.  Railway  Co.   (130 

U.   S.   416),   253. 
Frixione      v.      Tagliaferro      (10 

Moore's   Pr.   Cown.   Cas.   175), 

94. 
Frizzell    v.    Rundle     (88    Tenn. 

396),  292. 
Frost  v.  Cattle  Co.  (81  Tex.  505), 

151. 

Frost    v.    Erath    Cattle   Co.    (81 

Tex.  565),  148. 
Fulton   Bank  v.   Canal    Co.     (4 

Paige  (N.  Y.)   127),  250. 


Galigher  v.  Jones  (129  N.  S.  193), 

172,  298. 
Gardner   v.   Allen    (6   Ala.    187), 

264. 
Gardner  v.  First  National  Bank 

(10  Mont.  119),  124. 
Gardner    v.     Gardner     (5    Cush. 

483),  62. 
Gardner   v.   Mobile   R.    Co.    (102 

Ala.  635),  277. 
Gardner  v.  Ogden  (22  N.  Y.  327), 

168,  169. 
Garrett  v.  Hanshue  (53  Ohio  St. 

482),   277. 
Garretzen   v.    Duenckel    (50   Mo. 

104),  253. 
Gelatt  v.   Ridge    (117   Mo.    553), 

217. 
Gerard  v.  McCormick  (130  N.  Y. 

261),  269. 
Giberson  v.  Patterson  Mills  Co. 

(174  Pa.  369),  245. 
Gibson   v.   Winter    (5   B.   &   Ad- 

96),  264. 
Gilbert  v.  How   (45  Minn.   121), 

52,  147,  148,   151,  159. 
Gilder  v.  Davis  (137  N.  Y.  504), 

301. 
Gilfcett   v.   Whiting    (141   N.    Y. 

71),  87,  304. 
Gilman    Oil    Co.    v.    Norton    (89 

Iowa,  434),  269. 
Glaspie   v.    Krator    (5   C.    C.    A. 

474),  271. 

Glidden  &  Joy  Co.  v.  Nat.  Bank 
(16  C.  C.  A.  534),  157. 

Glover    v.    Henderson    (120    Mo. 
367),  120. 

Goode  v.  Ins.  Co.   (92  Va.  392), 
256. 

Goodrich   v.    McDonald    (112   N. 
Y.  157),  287. 

Gorman    v.    United    States    (34 
Ct.  of  CI.  237),  33. 


TABLE  OF  CASES. 


XXlil 


[References  are  to  sections.] 


Grady  T.  Insurance  Co.   (60  Mo. 

116),  103. 
Gratz    v.    Improvement    Co.    (82 

Fed.  Rep.  381),  117. 
Graves  v.  Horton  (38  Minn.  66), 

69,  70,  134. 
Greenfield    Bank    v.    Crafts     (4 

Allen,  447),  78,  96. 
Greenfield  Savings  Bank  v.  Sim- 
mons  (133  Mass.  415),  169. 
Greenleaf    v.    Moody    (13    Allen 

(Mass.)  3C3),  175. 
Griggs  v.  Swift  (82  Ga.  392),  222. 
Grover  v.  Morris  (73  N.  Y.  473), 

208. 
Grumbey  v.  Webb  (44  Mo.  444), 

168. 
Greenberg  v.  Wbitcomb  Lumber 

Co.  (90  Wis.  225),  211. 
Gulick   v.    Grover    (33   N.   J.    L. 

463),  15. 
Guneter  v.   Scranton  Power  Co. 

(181  Pa.  327),  247. 
Gunther  v.  Ullricb  (82  Wis.  222), 

88. 
Gwan  v.  Bank  of  Alexandria  ( — 

Tenn.  — ),  184. 

Hadden  v.  Dooley    (34  C.   C.  A. 

338),  251. 
Hale  v.  Kumler  (29  C.  C.  A.  67), 

217. 
Haley   v.    Eureka   County   Bank 

(21  Neb.  127),  280. 
Hall    v.    Grambill    (34   C.   C.   A. 

190),  225. 
Hall  v.  Harper  (17  111.  82),  45. 
Hall  v.  Norfolk  &  West.  R.  Co. 

44  W.  Va.  36),  259. 
Hamberger   v.   Marcus    (157   Pa. 

St.  133),  7. 
Hamilton    v.    Frotbingham     (59 

Micb.  253),  216. 
Hamilton   v.   Ins.   Co.   (98  Mich. 

585),  251. 


Hamilton  v.  Love  (152  Ind.  641), 

219. 
Hamlin  v.  Sears  (82  N.  Y.  327), 

83,  90. 
Hanna    v.    Island    Coal    Co.    (5 

Ind.  App.  163),  287. 
Hanover    Nat.    Bank   v.    Ameri- 
can, etc.,  Co.   (148  N.  Y.  612), 

137. 
Harkness  v.  W.  U.  Tel.  Co.   (73 

Iowa,  190),  267. 
Harralson  v.  Stein  (50  Ala.  347), 

103. 
Harrington    v.    Gies    (45    Mich. 

374),  220. 
Harris    v.    Johnston    (54    Minn. 

177),  52,  147,  148. 
Harris    v.    Nickerson    (L.    R.    & 

Q.  B.  286),  292. 
Harris  v.   Smith    (79   Mich.   54), 

215. 
Hartley  v.  Phillips   (198  Pa.  9), 

9. 
Harvey  v.  Merrill  (150  Mass.  1), 

226,  304. 
Haskell   v.    Starbird    (152   Mass. 

117),  253. 
Haskins    v.    Royster    (70    N.    C. 

601),  272. 
Hass  v.  Ruston  (14  Ind.  App.  8), 

296. 
Hatch  v.  Squires  (11  Mich.  185), 

70. 
Hatch  v.  Taylor  (10  N.  H.  538), 

135. 
Hatcher  v.  Comer  (73  Ga.  418), 

308. 
Hawkins  v.  McGroarty  (110  Mo. 

546),  84. 
Hawley  v.  Keeber  (53  N.  Y.  114), 

55. 
Hawxhurst  v.  Rathget  (119  Cal. 

531),  151. 
Hayward  v.  Langmaid  (  — Mass. 

-).  83. 


XXIV 


TABLE    OF    CASES. 


[References  are  to  sections.] 


Hayward  v.     "ordberg  Mfg.   Co. 

(29  C.  C.  A.  438),  33. 
Hazard  v.  Spears  (4  Keyes,  469), 

90. 
Hazard  v.  Spears   (4  Keyes  (N. 

Y.)  469),  94. 
Heath   v.    Nutter    (50   Me.   378), 

61. 
Heffron  v.  Pollard  (73  Tex.  96), 

164,  239. 
Hegenmyer  v.   Marks   (37  Minn. 

6),  170. 
Kelber   v.    Schantz     (109     Mich. 

669),  33. 
Helena  Nat'l  Bank  v.  Rocky  Mt. 

Tel.   Co.    (20   Mont.   379),   156, 

157. 
Hellen  v.  Anderson  (83  111.  App. 

506),  33. 
Henderson  v.  Ford  (46  Tex.  627), 

128. 
Henry   v.   Allen    (151   N.   Y.   1), 

189. 
Henry   v.    Heeb    (114   Ind.    275), 

78. 
Herman    v.    Martineau    (1    Wis. 

151),  167. 
Herrick   v.   Gallagher   (60  Barb. 

566),  207. 
Herring  v.  Hellendorf  (74  N.  C. 

588),  155. 
Hewett  v.  Swift  (3  Allen  (Mass.) 

420),  313. 
Heyn  v.  O'Hagen  (60  Mich.  150), 

90,  91,  95. 
Hibbard  v.  Peek   (75  Wis.  619), 

153. 
Hickman  v.  Green  (123  Mo.  165), 

247. 
Hicks  v.  Minturn  (19  Wend.  (N. 

Y.)  550).  291. 
Higgins  v.  Lodge   (68  Md.  229), 

292. 
Higgins   v.    Senior   (8   Mees.   & 

Wels.  834),  164. 


Hitchcock  v.  Griffin  Co.  (99  Mich 

447),  88. 
Hitchcock  v.  Griffin  &  Skelly  Co. 

(99  Mich.  447),  297. 
Hoag  v.   Graves   (81  Mich.  628), 

105. 
Hobson  v.  Hassett  (76  Cal.  203). 

160,  162,  201. 
Hoffiin    v.    Moss    (67    Fed.    Rep. 

440),  166,  256. 
Hoffman   v.   Maynard    (35  C.   C. 

A.  256),  256. 
Hohn  v.  Atlas  Nat.  Bank  (28  C. 

C.  A.  297),  251. 
Holly  v.  Domestic,  etc.,  Society 

34  C.  C.  A.  649),  269. 
Home    Ins.    Co.    v.    Mendenhall 

(164  111.  458),  251. 
Honaker  v.  Board  of  Education 

(42  W.  Va.  110),  268. 
Hooe   v.   Oxley    (1   Wash.    (Va.) 

19),  68. 
Horan  v.  Strachan  (86  Ga.  408), 

8. 
Hotchkiss  v.  Middlekauf  (96  Va. 

649),  148,  150. 
Hotchkiss  Co.  v.  National  Bank 

(15  C.  C.  A.  284),  251. 
Hoover  v.  Wise   (91  N.  S.  308), 

249. 
Houlton  v.  Dunn  (60  Minn.  26), 

33. 
Houseman   v.    Girard    Assn.    (81 

Penn.  St.  256),  210,  282. 

Howard  v.  Daly  (61  N.  Y.  362), 
219. 

Howard  v.  Grover  (28  Me.  97), 
179. 

Howe  Machine  Co.  v.  Clark  (15 
Kan.  492),  71. 

Hubbard   v.   Tenbrook    (124   Pa 
St.  291),  68,  139,  154,  239. 

Hudson  v.  Randolph  (13  C.  C.  A. 
402),  247. 


TABLE    OF    CASES. 


XXV 


[References   are  to  sections.] 


Huffman    v.    Newman    (55    Neb. 

713),  203. 
Hughes  v.  Gross  (166  Mass.  61), 

222. 
Hull    v.    Chaffin    (54    Fed.    Rep. 

437),  168. 
Humphreys  v.  Finch  (97  N.  Car. 

303),  61. 
Hunsaker    v.    Sturgis     (29    Cal. 

142),  171. 
Hunt   v.   Rousmanier   (8  Wheat. 

1),  124. 
Huntington    v.    Knox    (7    Cush. 

371),  164,  267. 
Huntley    v.    Mathias    (90   N.    C. 

101),  153,  236 
Hurley  v.  Watson  (68  Mich.  531), 

133. 
Hyatt  v.  Clark  (118  N.  Y.  563), 

88,  95. 
Hyde  v.  Johnson  (2  Bing.  N.  C. 

776),  30. 

Idler  v.  Borgmeyer  (13  C.  C.  A. 

198),  217. 
Ikley     v.     Merriam      (7     Cush. 

(Mass.)  242),  311. 
Innerarity    v.    Bank    (139    Miss. 

332),  247. 
Insurance  Co.  v.  Davis  (95  U.  S. 

425),   129. 
Insurance  Co.  v.  Kiger   (103   U. 

S.  352),  306. 
Ironwood  Store  Co.  v.  Harrison 

(75  Mich.  197),  82. 
Irwin   v.   Curie    (56   N.  Y.   App. 

Div.  514),  33. 
Irvine  v.  Watson   (5  Q.  B.  Div. 

414),  240. 
Irwin  v.  Williar  (110  U.  S.  at  p. 

510),  34. 
Ish   v.   Crane    (8   Ohio   St.   520), 

124. 
Isham  v.   Post   (140  N.  Y.  100), 

179,  184. 


Jackson  v.  Bank  (92  Tenn.  154), 

156. 
Jackson   v.   Burtis    (14    id.    391), 

113. 
Jackson    v.    National    Bank    (92 

Tenn.  154),  65,  236. 
James  v.  Allen  Co.  (44  Ohio  St. 

226),  219. 
James   v.    Bixby    (11    Mass.   34), 

239. 
James  v.  Steere   (16  R.  I.  367), 

279. 
Jammison     v.     Chesapeake     etc. 

Ry.  Co.  (92  Va.  327),  245. 
Janney  v.  Boyd   (30  Minn.  319), 

155. 
Jansen    v.    Williams     (36    Neb; 

869),  224. 
Jarnes  v.  Smith  (1  Ch.  384),  9. 
Jarvis  v.  Manhattan   Beach   Co. 

(148  N.  Y.  652),  253. 
Jefferson  v.  Burhan  (29  C.  C.  A. 

481),  216. 
Jeffrey  v.  Bigelow  (13  Wend.  (N. 

Y.)  518),  17. 
Jemison   v.   Citizens   Sav.    Bank 

(122  N.  Y.  135),  226. 
Jemison    v.    Citizens   Sav.    Bank 

(122  N.  Y.  135),  232. 
Jett  v.  Hempstead  (25  Ark.  462), 

185,  187. 
Johnson  v.  First  National  Bank 

(79  Wis.  414),  251. 
Johnson  v.  Hurley  (115  Mo.  513), 

68. 
Johnson  v.  Martin  (11  La.  Ann. 

27),  178. 
Johnson  v.  Stone  (40  N.  H.  197), 

45. 
Johnston   Harvester  Co.  v.   Mil- 
ler  (72   Mich.   265),   251. 
Jones  v.  Atkinson  (68  Ala.  167), 

88,  93. 
Jones  v.  Williams   (133  Mo.  1), 

164, 


XXVI 


TABLE    OF    CASES. 


[References   are  to  sections.] 


Kahn  v.  Walton   (46    Ohio    St. 

195),  33. 
Kane  v.  Barstow  (42  Kan.  465), 

70,  153. 
Kansas  City  etc.  R.  Co.  v.  Hig- 

don  (94  Ala,  286),  253. 
Kayton    v.    Barnett    (116   N.   Y. 

625),  239. 
Kearney   v.   Clinton   (101  Mich. 

106),  292. 
Kearney  Bank  v.  Froman   (129 

Mo.  427),  246. 
Keighley  v.   Durant   (App.   Cas. 

240),  83. 
Keidan    v.    Winegar    (95   Mich. 

430),  164. 
Kennedy  v.  Hodges  (97  Ga.  753), 

33. 
Kerr  v.   Cotton    (23   Tex.    411), 

183. 
Kershaw  v.  Ladd  (34  Oreg.  375), 

184. 
Kiewert  v.  Rindskopf  (46  Wis. 

481),  186. 
Killingsworth  v.   Trust  Co.    (18 

Ore.  351).  49. 
Kilpatrick  v.  Haley  (13  C.  C.  A. 

480),  256. 
Kimball  v.  Billings  (55  Me.  147), 

212. 
King  v.  Sparks  (17  Ga.  285),  156. 
Kingsley  v.   Fitts   (51  Vt.   414), 

137. 
Kingsley    v.    Siebrecht  (92    Me. 

23),  267. 
Kirk's  Appeal   (87  Pa.  243),  277. 
Kirkland  v.   Benjamin  (67  Ark. 

480),  33. 
Knickerbocker     v.     Wilcox     (83 

Mich.  200),  201. 
Knapp  v.  Alvord  (10  Faige,  205), 

124. 
Knight  v.  Clark  (48  N.  J.  L.  22), 

161,  206. 
Knowles  v.  Scott  (1  Ch.  717),  9. 


Komorowski    v.    Krumdlck    (56 

Wis.  23),  154,  236. 
Kornemann    v.     Monaghan     (24 

Mich.  36),  70,  155. 
Kozel  v.  Deariove   (144  111.  23), 

64. 
Kramer    v.    Winslow    (130    Pa. 

484),  170. 
Kroeger    v.    Pitcairn    (101    Pa. 

311),  192,  195. 

Ladd    v.    Hildebrant    (27    Wis. 

135),  91. 
Laing  v.  Butler  (37  Hun.  (N.  Y.) 

144),  240. 
Larence  v.  Johnson  (64  111.  351), 

155. 
Larson    v.    Metropolitan    Street 

Ry.  Co.  (110  Mo.  234),  244. 
Laredon    Savings    Fund    Society 

v.   Hagerstown   Savings   Bank 

(36  Tenn.  St.  498),  12,  14,  146. 
Laverty    v.    Snethen    (68    N.    Y. 

522),  174. 
Law  v.  Stokes  (32  N.  J.  L.  249), 

137. 
Lawall  v.  Groman  (180  Pa,  532), 

71,  281. 
Lawler    v.    Murphy    (58    Conn. 

294),  199. 
Leach   v.   Railroad   Co.    (86  Mo. 

27),  170. 
Lawrence    v.    Gullifer    (38    Me. 

532),  221. 
Leake  v.  Watson  (58  Conn.  332), 

300. 
Lehman    v.    Pritchett    (84    Ala. 

512),  308. 
Leonard  v.  Poole  (114  N.  Y.  371), 

33. 
Leroy  v.  Beard  (8  How.  (U.  S.) 

451),  151,  176. 
Levi  v.  Booth  (58  Md.  30S),  152. 
Levy  v.  Spencer  (18  Colo.  532), 

166,  309. 


TABLE    OF    CASE! 


XXVll 


[References 

Lewis  T.  Brehner  (33  Md.  412), 

309. 
Lewis  v.  Fisher  (80  Md.  139),  7. 
Lewis  v.   Insurance  Co.   (61  Mo. 

634),  120. 
Lewis  v.   Tilton    (64   Iowa  220), 

64,  199. 
Llddell    v.    Chichester    (84    Ala. 

508),  219. 
Liebscher  v.  Kraus  (74  Wis.  387), 

162,  164. 
Liggett  v.  Glenn  (2  C.  C.  A.  286), 

280. 
Little  Pittsburg  etc.  Co.  v.  Lit- 
tle   Chief    etc.   Co.    (11   Colo. 

223),  138. 
Long  v.   Hartwell    (34   N.   J.   L. 

116),  61,  64. 
Lord  v.  Thomas  (64  N.  Y.  107), 

111. 
Louisville  etc.  R.  Co.  v.  Wallace 

136  111.  87),  285. 
Lowey  v.  Granite  Association  (8 

Misc.  R.  319),  33. 
Lucas  v.  Bank  of  Darien  (2  Stew. 

(Ala.)  280),  38. 
Lucke  v.   Clothing    Cutters    As- 
sembly (77  Md.  396),  265. 
Lum  v.  Clark  (57  N.  W.  662),  33. 
Lum  v.  McEwen  (56  Minn.  278), 

33. 
Lumpkin    v.    Wilson    (5    Heisk. 

(Tenn.)    555),  151. 
Lyon  v.  Hussey  (82  Hun.  15),  33. 
Lyon  v.  Kent  (45  Ala.  656),  43. 
Lyon  v.  Pollock   (99  U.  S.  668). 

151. 

Maddox  v.  Brown   (71  Me.  432), 

258. 
Mahoney   v.    McLean    (26   Minn. 

415),  242. 
Malone  v.  McCullough  (15  Colo. 

460),  64. 


are  to  sections.) 

Manning  v.  Leighton  (65  Vt.  84), 

287. 
Mansfield  v.   Mansfield   (6  Conn. 

559),  114. 
Massey     v.     Taylur     (5     Coldw. 

(Tenn.)  447),  221. 
Matthews    v.    Dubuque    Mattress 

Co.  87  Iowa,  246),  1G2. 
Matthiessen  etc.  Co.  v.  McMahon 

(38  N.  J.  L.  536),  126. 
Mattingly    v.    Pennie    (105    Cal. 

514),   217. 
Maury   v.   Ranger    (38  La.   Ann. 

485),  204. 
Maxcy  Mfg.  Co.  v.  Burnham  (89 

Me.  538),  117,  239. 
Mayer    v.    Building    Ass'n     (104 

Ala.  611),  211. 
Mayer  v.  Dean   (115  N.  Y.  556), 

88,  256. 
Mayor  of  Salford  \.  Lever  (1  Q. 

B.  Div.  168),  271. 
McArthur  v.  Times  Printing  Co. 

(48  Minn.  319),  83. 
McCabe  v.  Goodfellow  (133  N.  Y. 

89),  54. 
McCandless  v.  Belle  Plaine  Can- 
ning  Co.    (78   Iowa,    161),   162, 

164. 
McClay  v.  Hedge  (18  Iowa,  66), 

223. 
McClelland    v.    Saul    (113    Iowa, 

208),  246. 
McClintock  v.  Oil  Co.  (146  Penn. 

144),  96. 
McClure  v.  Herring  (70  Mo.  IS), 

161. 
McCord   v.    Western  Union    Tel. 

Co.   (39  Minn.  1S1),  255. 
McCracken  v.  San  Francisco  (16 

Cal.  591),  75.  92. 
McCrary    v.    Ruddick    (33    Iowa, 

520),  216. 
McCullough  v.  Thompson  (45  N. 

Y.  Super.  449),  240. 


xxvm 


TABLE    OF    CASES. 


[References 

McCurdy    v.    Rogers    (21    Wis. 

197),  197,  256. 
McDonald    v.    Maltz    (94    Mich. 

172),  224,  303. 
McDonnell  v.  Rigney  (108  Mich. 

276),  33. 
McFarland    v.    Heim    (127    Mo. 

327),  81. 
McGraft  v.  Ruger  (60  Wis.  406), 

310. 
McHany  v.  Schenck  (88  111.  357), 

155. 
Mclntyre     v.     Park     (11     Gray 

(Mass.),  132),  85. 
McKensey   v.   Edwards    (88    Ky. 

272),  162. 
McKindly   v.   Dunham   (55  Wis. 

515),  153,  155. 
McKinley    v.    Chicago    etc.    Ry. 

Co.  (44  Iowa,  314)    255. 
McKinley  v.  Williams   (20  C.  C. 

A.  312),  225. 
McKinnon  v.   Vollmar   (75  Wis. 

82),  100,  103. 
McLaren  v.  Hall  (26  Iowa,  297), 

48,  81. 
McMullan  v.  Dickinson  Co.    (60 

Minn.  156),  219. 
McNamara  v.  Gargett  (68  Mich. 

454),  33. 
McNeil  v.  Chamber  of  Commerce 

(154  Mass.  277),  57. 
McNeil  v.  Tenth  National  Bank 

46  N.  Y.  325),  152. 
McNevins  v.  Lowe  (40  111.  209), 

179. 
McWilliams  v.  Detroit  Mills  (31 

Mich.  275),  49. 
Melledge   v.   Iron   Co.    (5  Cush. 

(Mass.)  158),  80. 
Melms  v.  Pabst  Brewing  Co.  (93 

Wis.  153),  247. 
Mercantile  Ins.  Co.  v.  Hope  Ins. 

Co.  (8  Mo.  App.  408),  167. 


are  to  sections.] 

Merchant's  Ins.  Co.  v.  Prince  (50 

Minn.  53),  171. 
Merrill  v.  Packer  (80  Iowa,  542), 

33. 
Merrill  v.  Rokes  (4  C.  C.  A.  433), 

230. 
Mexican  International  B'k'g  Co. 

v.  Lichtenstein  (10  Utah  338), 

33. 
Meyerhoff  v.  Daniels  (173  Pa.  St. 

555),  256. 
Michael  v.  Foil  (100  N.  Car.  178), 

280. 
Midgley  v.  Midgley  (3  Ch.  282), 

281. 
Midland      National      Bank       v. 

Brightwell   (1*8  Mo.  358),  269. 
Milburn    Wagon    Co.    v.    Evans 

(30  Minn.  89),  182. 
Millar  v.  Cuddy   (43  Mich.  273), 

216. 
Miller  v.  Roach  (150  Mass.  140), 

162. 
Miller  v.  Wilson  (98  Ga.  567),  98.. 

212. 
Milliken  v.  Hcthaway  (148  Mass. 

69),  292. 
Milliken  v.  W.  U.  Tel.  Co.   (73 

Iowa,  190),  267. 
Mills  v.  Mills  (40  N.  Y.  543),  33. 
Mining  Co.  v.  Bank  (96  Fed.  Rep. 

23),  88. 
Minneapolis  Sash  and  Door  Co. 

v.      Metropolitan      Bank      (76 

Minn.  136),  184. 
Minneapolis  Trust  Co.  v.  School 

District  (68  Minn.  414),  30. 
Missouri   v.   Walker    (125   N.   S. 

339),  115. 
Mitchell  v.  Bromberger  (2  Nev. 

345),  280. 
Mitchell  v.  Crasweller  (13  Com. 

B.  237),  258. 
Mitchell  v.  Minnesota  Fire  Ass'n 

(48  Minn.  278),  83. 


TABLE    OF    CASES. 


XXIX 


[References 

Mitchurn  v.  Dunlap  (98  Mo.  418), 

70. 
Mobile   Ry.   Co.    v.    Clanton    (59 

Ala.  392),  229. 
Moline    Malleable    Iron    Co.    v. 

York    Iron    Co.    (27    C.    C.    A. 

442),  205. 
Montagu   v.    Forwood    (2    Q.    B. 

Div.  350),  103,  268. 
Montgomery     v.     Pacific     Coast 

Land  Bureau  (94  Cal.  284),  291. 
Montgomery    v.    Crosthwait    (90 

Ala,  553),  78,  83. 
Montross  v.  Eddy  (94  Mich.  100), 

303. 
Moore  v.  Appleton  (26  Ala.  633), 

232. 
Moore  v.   Robinson    (2   Barn.   & 

Adol.  817),  265. 
Morris  v.  Georgia  Loan  Co.  (109 

Ga.  12),  251. 
Morrison  v.  Clark   (89  Me.  103), 

53. 
Morrison    v.    Rogers     (115    Cal. 

252),  33. 
Morrow   Shoe   Mfg.   Co.   v.    New 

England  Shoe  Co.   (6  C.  C.  A. 

508),  292. 
Moulton    v.    Bowker    (115   Mass. 

36),  277. 

Murphy   v.    Murphy    (1    S.    Dak. 

316),  215. 
Moyer    v.    Cantieny     (41     Minn. 

242),  33. 

Moyer  v.  East  Shore  Terminal 
Co.   (41  S.  Car.  300),  38. 

Mullanphy  Savings  Bank  v. 
Schott  (135  111.  655),  70. 

Mulchey  v.  Methodist  Society 
125  Mass.  487),  213. 

Muller  v.  Fuchs  (64  Md.  217), 
292. 

Munger  v.  Baldridge  (41  Kans. 
236),  42. 


are  to  sections.] 

Mussey  v.  Holt   (24  N.  H.  248), 

53. 
Mutual    Benefit    L.    Ins.    Co.    v. 

Brown    (30  N.  J.   Eq.  193),  62. 
Myles    v.    My  lea    (6    Bush,    237), 

298. 

Naltner  v.  Dolan  (108  Ind.  500), 

188. 
Nash  v.  Mitchell  (71  N.  Y.  199), 

42. 
Nashville  R.  R.  Co.  v.  Chumley 

(6  Heisk.  327),  229. 
Nashville  etc.  R.  Co.  v.  Starnes 

(9  Heisk.  52),  254. 
National  Bank  v.  Clark  (139  N. 

Y.  307),  251. 
National  Bank  of  Commerce  v. 

Feeney  (9  S.  Dak.  553),  251. 
National   L.    Ins.   Co.    v.   Minch. 

(53  N.  Y.  144),  247. 
Neal  v.  Patten  (40  Ga.  363),  72. 
Neely  v.  Jones  (16  W.  Va.  625), 

93. 
New  York  Cent.  Ins.  Co.  v.  Na- 
tional Ins.   Co.   (14  N.  Y.  85), 
167,  270. 
New    York    Iron    Mine   v.    First 
Nat.  Bank  (39  Mich.  614),  236. 
New  York  Iron  Mine  v.  National 
Bank  (Agency  Cases,  423),  65. 
New   York   Mine    v.    Bank     (C9 

Mich.  644),   157. 
New  York  etc.  R.  Co.  v.  O'Leary 

(35  C.  C.  A.  562),  255. 
Nichells  v.  Nichells    (5  N.   Dak. 

125),  277. 
Nichols  v.  Haines  (98  Fed.  Rep. 

692),  61. 
Nixon   v.   Bogin    (26  S.   C.   611), 

173,  178. 
Nixon  v.  Brown   (57  N.  H.  34), 

152. 
Nobleboro  v.  Clark  (68  Me.  87), 
63. 


XXX 


TABLE    OF    CASES. 


[References   are  to  sections.] 


North   Point   etc.    Co.    v.    Utah 

Canal  Co.  (16  Utah  246),  80. 
North  River  Bank  v.  Dymar   (3 

Hill  (N.  Y.)  262),  250. 
Norwegian    Plow    Co.    v.    Clark 

(102  Iowa,  31),  10. 
Noyes   v.    Landon    (59   Vt.   569), 

170. 
Nunnelly  v.  Southern   Iron   Co. 

(94  Tenn.  397),  212. 

O'Brien    v.     Spalding    (102    Ga, 

490),  280. 
Oelricks  v.  Ford   (64  N.   S.  49), 

204. 
Ogden    v.    Raymond    (22    Conn. 

379),  197. 
Olmstead  v.  Bach  (78  Md.  132), 

219. 
Olson    v.    Lamb    (56   Neb.    104), 

278. 
O'Neil  v.  Behanna  (182  Pa.  236), 

272. 
Orman   v.   State    (22   Tex.   App. 

604),  280. 
Osborne    v.    Morgan    (130    Mass. 

102),  98,  211. 
Osborne  v.  Rider  (62  Wis.  235), 

177. 
Owen  v.  Frink  (24  Cal.  171),  111. 

Pacific  Bank  v.  Hannah  (90  Fed. 

Rep.  72),  124. 
Page   v.   Wells    (37    Mich.    415), 

178. 
Parcell    v.    McComber    (11    Neb. 

209),  223. 
Park  Bros.  &  Co.  v.  Kelly  Axe 

Mfg.    Co.    (49    Fed.    Rep.    618), 

38,   89. 
Parks    v.    Dolcl    Packing   Co.    (6 

Misc.  R.  570),  33. 
Passano   v.    Acosta    (4    La.    26), 

173. 


Paterson  v.  Gandasequl  (15  East, 

62),  239,  240. 
Patrick   v.   Bowman    (149   N.   S. 

411),  195,  202. 
Patterson   v.    Lippincott    (47   N. 

J.  L.  457),  41,  197. 
Paul  v.  Grimm  (165  Pa.  139),  178. 
Peabody  v.  Hoard   (46  111.  242), 

133. 
Peck  v.  Chouteau  (91  Mo.  140), 

282. 
Peck  v.  Heim  (127  Pa.  St.  500), 

306. 
Peck  v.  Henrich  (167  N.  S.  624), 

33. 
Penfield   v.    Warner    (96    Mich. 

179),  151. 
Pennoyer  v.  Willis  (26  Oreg.  1), 

179. 
Pennsylvania  Houseman   v.   Gi- 

rard  etc.  Ass'n   (81  Penn.  St. 

256),  246. 
Pennsylvania    Railroad    Co.    v. 

Vandiver  (42  Pa.  St.  365),  63. 
People  v.   Roby    (52  Mich.   277), 

259. 
People   v.    Township    Board    (11 

Mich.  222),  168. 
Pepper   v.    Cairns    (133    Pa.    St. 

114),  70. 
Peters    v.    Farnsworth    (15    Vt. 

155),  151. 
Perin   v.    Parker    (126    111.   201), 

230,  304. 
Perkins     v.    Pendleton    (90    Me. 

166),  265. 
Peters  v.  Grim  (149  Pa.  163),  186. 
Peterson     v.      Christensen      (26 

Minn.  377),  101. 
Peterson    v.    Homan    (44    Minn. 

166),  164. 
Peterson  v.  Wood,  M.  &  R.  Co. 

97  Iowa,  148),  153. 
Petteway  v.  Mclntyre  ( —  N.  Car. 

-),  11. 


TABLE  OF  CASES. 


3DDD 


[References  are  to  sections.] 


Pew    v.    Gloucester    Bank    (130 

Mass.  391),  227. 
Phelon  v.  Stiles   (43  Conn.  426), 

253. 
Pheips    v.    Sullivan    (140    Mass. 

36),  61,  67. 
Phelps   v.   Wait    (30   N.   Y.   78), 

213. 
Philadelphia  R.  R.  Co.  v.  Cowell 

(28  Pa.  St.  329),  87,  90. 
Phillips    v.   Moir    (69     111.   155), 

307. 
Phoenix   Ins.    Co.    v.    Flemming 

(65  Ark.  54),  201. 
Pickert     v.     Marston     (68    Wis. 

465),  153,  236. 
Pickle  v.   Muse    (88  Tenn.   380), 

89,  156. 
Pinkham    v.    Crocker     (77    Me. 

563),  306. 
Pittsburg  Mining  Co.  v.  Spooner 

(74  Wis.  307),  186. 
Plant    v.    Thompson     (42    Han. 

664),  301. 
Plaster  v.  Rigney  (97  Fed.  Rep. 

12),  40. 
Pole  v.  Leask  (33  L.  J.  Rep.  Eq. 

155),  59. 
Pope  v.  Hanke  (155  111.  617),  226, 

232. 
Powell    v.   Wade    (109   Ala.    95), 

267. 
Pullman   Car   Co.   v.    Gavin    (93 

Tenn.  53),  265. 
Pursley  v.  Morrison  (7  Ind.  356), 

68. 
Putnam  v.  French   (53  Vt.  402), 

153,  ?96. 

Quirk  v.  Muller   (14  Mont.  467), 

33. 
Quinn  v.  Dresback  (75  Cal.  -159), 

90. 
Quinlan    v.   Providence  Ins.   Co. 

(133  N.  Y.  356),  140. 


Railroad  Co.  v.  Henleln  (52  Ala. 

606),  73. 
Railroad  Co.  v.  Morris  (10  Ohio 

Cir.  Ct.   R.  502),  33. 
Ramspeck    v.    Pattillo    (140    Ga. 

772),  166. 
Randall  v.  Van  Wogennen    (115 

N.  Y.  527),  287. 
Rankin  v.  West   (25  Mich.  195). 

48. 
Raycroft  v.  Tayntor  (68  Vt.  219), 

265. 
Raymond  v.  Crown  etc.  Mills  (2 

Mete.  319),  239. 
Raymond  v.  Palmer  (41  La.  Ann. 

425),  90. 
Raymond    v.    Squire    (11   Johns. 

47),  113. 
Reed   v.   Morton    (27   Neb.   760), 

81,  88. 
Rees    v.    Pellow    (97    Fed.    Rep. 

167),  120. 
Reese  v.  Medlock  (27  Tex.  120), 

83,  133. 
Reeve  v.  Bank  (54  N.  J.  L.  208), 

162. 
Reynolds   v.    Fleming    (30    Kan. 

106),  275. 
Rhoades  v.  Blackiston  (106  Mass. 

334),  263. 
Rhodes  v.  Forwood  L.  R.  (1  App. 

Cases  256),  120. 
Rice  v.  Davis  (136  Pa.  439),  167. 

224,  303. 

Rice  v.  McLarren   (42  Me.  157), 
86. 

Rice  v.   Wood    (113   Mass.   133), 
33,  51,  167,  224,  299,  303. 

Ripley  v.  Gelston   (9  Johns.   <N. 
Y.)  201),  208. 

Riabourg  v.  Bruckner  (3  Comm. 
B.  N.  S.  812),  94. 

Roach  v.  Turk  (9  Heisk.  ,Tenn.) 
708),  500. 


XXX11 


TABLE    OF    CASES. 


[References   are  to  sections.] 


Roberts    v.    French    (153    Mass. 

60),  294. 
Roberts    v.    Rumley    (58    Iowa, 

301),  83,  89. 
Robinson  v.  Bird  (158  Mass.  357), 

212,  292. 
Robinson  v.  Mollett  (L.  R.  G.  H. 

of  L.  802),  171. 
Roby  v.  Carter  (6  Tex.  Civ.  App. 

295),  33. 
Roca  v.   Byrne    (145   N.  Y.   182), 

188,  269. 
Rochester  v.  Levering  (104  Ind. 

562),  169. 
Rogers   Mfg.   Co.   v.   Rogers    (58 

Conn.  356),  119. 
Rolland    v.   Hart    (L.   R.   6    Ch. 

App.  678),  246. 
Romeo    v.    Martucci    (72    Conn. 

504),  306. 
Ross  v.   Hardin    (79   N.   Y.   84), 

227. 
Rosser  v.  Darden   (82  Ga.  219), 

268. 
Rowe  v.  Rand  (111  Ind.  206),  116, 

263. 
Rowell    v.    Klein    (44    Ind.    290), 

48,  81. 
Rozel  v.   Dearlove   (114  111.   23), 

84. 
Ruggles  v.  Am.  Central  Ins.  Co. 

(114  N.  Y.  415),  139. 
Russell   v.   Young   (36   C.   C.   A. 

71),  283. 
Rust-Owen  Lumber  Co.   v.  Holt 

(60  Neb.   80),  48. 

Paladin  v.  Mitchell   (45  111.  79), 

297. 
Salton  v.  Cycle  Co.   (1  Ch.  Div. 

43),  116,  117. 
Samuels  v.   Oliver   (130  111.   73), 

*3. 
Sanders  v.   Peck   (87  Fed.  Rep. 

61).  93. 


Sands  v.  Ins.  Co.  (50  N.  Y.  626), 

129. 
Sands  v.  Potter  (165  111.  397),  126. 
Sanger  v.  Warren  (91  Tex.  472), 

242. 
Saveland  v.  Green  (40  Wis.  431), 

103. 
Savings  Bank  v.  Butcher's  Bank 

(107  Mo.  133),  88. 
Savings  Bank  v.  Ward  (100  U.  S. 

195),  210,  282. 
Savings  Society  v.  Savings  Bank 

(36  Penn.  St.  498),  68,  73. 
Sawyer  v.  Mayhew  (51  Me.  398), 

182. 
Schaefer  v.  Osterbrink   (07  Wis. 

495),  213. 
School  District  v.  Insurance  Co. 

(62  Me.  330),  80. 
Schreyer  v.  Turner  Flouring  Co. 

(29  Oreg.  1),  83. 
Scofield    v.   Parlin    v.   Orendorff 

Co.  (61  Fed.  Rep.  804),  63. 
Scott  v.  Railroad  Co.   (86  N.  Y. 

200),  83,  90. 
Sea  v.  Carpenter  (16  Ohio,  412), 

221. 
Seaverns  v.  Presbyterian  Hospi- 
tal (173  111.  414),  251. 
Security    Co.     v.    Graybeal     (85 

Iowa,  543),  155. 
Seehorn  v.   Hall   (130   Mo.   257), 

73. 

Seip's  Estate  (163  Pa.  423),  280. 
Selover    v.    Bryant     (54    Minn. 

434),  285. 
Shaeffer  v.  Blair  (149  U.  S.  248), 

225. 
Shafer  v.  Phoenix  Ins.  Co.    (53 

Wis.  361),  246. 
Shane  v.  Lyons  (172  Mass.  199), 

48. 
Shanks    v.    Lancaster    (5    Gratt. 

(Va.)    110),  161. 


TABLE    OF    CASES. 


XXXUl 


[References 

Sheahan   v.   Steamship    Co.    (87 

Fed.  Rep.  167),  120. 
Shearer  v.  Evans   (89  Ind.  400), 

213. 
Sherman    Centre    Town    Co.    v. 

Morris  (43  Kan.  282),  88. 
Shiells     v.     Blackburne     (1     H. 

Blackstone,  158),  180. 
Shipley   v.    Reasoner    (80    Iowa, 

548),  33. 
Shipman  v.  Bank  (126  N.  Y.  318), 

251. 
Shipway  v.  Brcadwood  (1  Q.  B. 

369),  271. 
Shoenfeld    v.    Fleicher    (73    111. 

404),  182. 
Shoninger  v.  Peabody  (57  Conn. 

42),  89. 
Sibbald   v.    Bethlehem   Iron   Co. 

(83  N.  Y.  378),  301,  302. 
Sibbald  v.  The   Iron  Co.   (83  N. 

Y.   378),  218. 
Sidney   School   Furniture  Co.   v. 

Warsaw    School    District    (122 

Pa.  494),  244. 
Simmons    v.   More     (100    N.    Y. 

140),  195,  300. 
Simon  v.  Johnson  (105  Ala.  344), 

155. 
Simons  v.  Vulcan  Oil  Co.  (61  Pa. 

202),  170. 
Simpson    v.    Commonwealth    (89 

Ky.   412),   64. 

Sims  v.  Miller  (37  S.  Car.  402), 

307. 
Singer  Mfg.  Co.  v.  Rahn  (132  U. 

S.  518),  253. 
Skiff  v.  Stoddard  (63  Conn.  198), 

295. 

Smethurst  v.  Mitchell   (1  Ell.  & 
Ell.  622),  241. 

Smith  v.  Binder  (75  111.  492).  207. 
Smith  v.  Blackley  (188  Pa.  550), 
186. 


are  to  sections.] 

Smith  v.  Clews  (105  N.  Y.  283), 

152. 
Smith  v.  Cologan  (2  Tenn.  Rep. 

188n),  94. 
Smith    v.    Jones    (47    Neb.    108), 

277. 
Smith   v.    Kelly   (43    Mich.   390), 

207. 
Smith   v.   Kidd    (68   N.    Y.    130), 

155. 
Smith  v.  Tracy  (36  N.  Y.  79),  83. 
Smont    v.    Ilbery     (10    Mees.    & 

Wels.  1),  200. 
Smyth  v.  Craig  (3  Watts  &  Serg. 

(Pa.)  14),  113. 
Snyder    v.    Partridge     (138    111. 

173),  246. 
Society    of    Shakers    v.    Watson 

(68  Fed.  Rep.  730),  164. 
Southern  Express  Co.  v.  Brown 

(67  Miss.  260),  253. 
Southern  Express  Co.  v.  Platten 

(36  C.  C.  A.  46),  254. 
Sparks  v.  Despatch  Transfer  Co. 

(104  Mo.  521),  164. 
Spaulding  v.  Ewing  (149  Pa.  St. 

375),  33. 
Spittle  v.   Lavender   (2   Brod.  & 

Bing.  452),  97. 
Spraighls   v.   Hawley    (39   N.   Y. 

441),  212. 
Stainback    v.    Read     (11     Gratt. 

281).  133. 
Standard  Oil  Co.   v.   Gilbert   (Si 

Ga.  714),  115,  228. 
St.    Andrews    Bay   Land    Co.    v. 

Mitchell  (4  Fla.  192),  38. 
Stanton  v.  Embrey  (98  N.  S.  548), 

33,  284,  285. 
Stark   v.    Parker    (2   Pick.    267), 

223. 
State  v.  Armstrong  (106  Mo.  395). 

259. 
State   v.    Bristol    Savings    Bank 

(108  Ala.  3),  71. 


XXS1V 


TABLE    OF    CASES. 


[References   are  to  sections.] 


State  v.  Kittelle  (110  N.  C.  500), 

259. 
State  v.  Torinus  (26  Minn.  1),  80. 
State   v.   Walker    (88   Mo.    279), 

111. 
Steele  v.  Ellmaker  (11  Serg.  & 

R.  (Pa.)  86),  291. 
Steele  v.  Ins.  Co.   (93  Mich.  81), 

257. 
Steeples  v.  Newton  (7  Oreg.  110), 

223. 
Stehn  v.  Fasnacht  (20  La.  Ann. 

83),  239. 
Stephens  v.  Elwall   (4  Maule  & 

Sel.  239),  98. 
Stevenson   v.   Kyle    (42   W.   Va. 

229),  269. 
Stewart  v.  Brooklyn  etc.  R.  Co. 

(90  N.  Y.  588),  255. 
Stewart  v.  Pickering    (73    Iowa, 

652),  150. 
Stillman  v.  Fitzgerald  (37  Minn. 

186),  150. 
Stimson   v.   Lee    (68   Miss.   113), 

160,  162. 
St.  Johnsbury  R.  R.  Co.  v.  Hunt 

(55  Vt.   570),  272. 
Stone  v.  Hills  (45  Conn.  44),  258. 
Storer  v.   Eaton    (50     Me.   219), 

182. 
Stout  v.  Smith  (98  N.  Y.  25),  279. 
Storey  v.  Ashton  (L.  R.  4  Q.  B. 

476),  258. 
Strauss  v.  Meertief  (64  Ala.  299) , 

220. 
Streissguth  v.  National  Bank  (43 

Minn.  50),  184. 
Strong  v.  Brennan   (183  111.  97), 

278. 
Strong   v.    High    (2   Rob.    (La.) 

103),  182. 
Sullivan    v.    Horgan     (17    R.   I. 

109),  33. 
Sumner  v.  Reicheniker   (9  Kan. 
320),  221. 


Sutherland  v.  Wyer  (67  Me.  64), 

219,  220. 
Swartout  v.  Evans   (37  111.  442), 

45. 
Swim  v.  Wilson    (90  Cal.  126), 

212,  300. 
Szymanski    v.    Plassan    (20    La. 

Ann.  90),  94. 

Talcott  v.  Chew    (27  Fed.  Rep. 

273),  308. 
Taul    v.    Edmondson     (37    Tex. 

556),  185. 
Taussig  v.  Hart  (58  N.  Y.  425), 

298. 
Tenney  v.  Berger  (93  N.  Y.  524), 

276. 
Terry  v.  Provident  Fund  Society 

(13  Ind.  App.  1),  91. 
Tete   v.    Lanaux    (45    La.    Ann. 

1343),  7. 
Thacher  v.  Pray  (113  Mass.  291), 

83,  88. 
Tbayer  v.  Meeker  (86  111.  470), 

71. 
Thilmany  v.  Iowa  Paper  Bag  Co. 

(108  Iowa,  357),  197,  198. 
Thomas    v.    Atkinson    (38    Ind. 

248),  240 
Thomas  v.   City  Nat.   Bank    (40 

Neb.  501),  88. 
Thomas  v.  Joslin  (30  Minn.  388), 

61,  159. 
Thompson  v.  Davenport  (9  B.  & 

Cr.  78),  239,  240. 
Thompson  etc.  Co.  v.  Capitol  Co. 

(12  C.  C.  A.  643),  251. 
Thompson    v.   Kelly   (101   Mass. 

291),  263,  290. 
Thorne  v.  Deas  (4  Johns.  (N.  Y.) 

84),  173. 
Tiedeman— In   re    (2   Q.   B.   Div. 

66),  83,  96. 
Tiedeman— In  re  (2  Q.  B.  66),  96. 
Tier  v.  Lampson  (35  Vt.  179),  68. 


TABLE  OF  CASES. 


XXXV 


[References   are  to  sections.] 


Tllden  v.  Barnard  (43  Mich.  37C), 

201. 
Timberlake  v.  Thayer   (71  Miss. 

279),  223. 
Towle  v.  Leavitt  (23  N.  H.  360), 

288, 
Trentor    v.    Pothen     (46    Minn. 

298),  246. 
Trueblood  v.  Trueblood    (8  Ind. 

195),  41. 
Towle  v.  Leavitt  (23  N.  H.  360), 

139,  141. 
Turner    v.    Goldsmith    (1   Q.    B. 

Div.   544),  120. 
Turner  v.  Sawdon  (2  K.  B.  653), 

115. 
Tuttle    v.    Campbell    (74    Mich. 

652),  53. 

Underwood    v.   Lewis     (2   Q.   B. 

306),  276. 
Union    School    Furniture   Co.   v. 

School  District  (50  Kans.  727), 

80. 
Union  Stock  Yard  Co.  v.  Mallory 

(157  111.  554),  68. 
Union  Switch  Co.  v.  Johnson  Co. 

(61  Fed.  Rep.  940),  90. 
United  States  v.  Bartlett  (Dav.  9, 

24  Fed.  Cas.  1021),  29. 
United  States  Rolling  Stock  Co. 

v.  Atlantic  R.  Co.  (34  Ohio  St. 

450),  270. 
United   States   v.   Bartlett   (Dav. 

9,  24  Fed.  Cas.  1021),  30. 
Usborne  v.  Stephenson  (36  Oreg. 

328),  307. 

Vallette  v.  Tedens  (122  111.  607), 

168. 
Vennum    v.    Gregory    (21    Iowa, 

326),  221. 

Vescelius    v.    Martin    (11    Colo. 
391),  157,  236. 


Vicksburg    etc.     R.     R.     Co.    v. 

O'Brien  (119  U.  S.  99),  2 
Vinton  v.  Baldwin  (88  Ind.  104), 

299,  301. 
Vinton  v.  Baldwin  (88  Ind.  104), 

301. 
Vocke    v.    Peters    (58    111.    App. 

338),  33. 

Waddill  v.  Sebree  (88  Va.  1012), 

241,  242. 
Wadsworth  v.  Adams  (138  U.  S. 

3S0),  221. 
Wagner  v.  Hildebrand   (187  Pa. 

St.  136),  33. 
Walker    v.     Walker     (5    Heisk. 

(Tenn.)  425),  183. 
Wallace  v.  Bentley  (77  Cal.  19), 

192. 
Wallace  v.   Floyd    (29   Pa.   184), 

228. 
Wallace  v.  Ford  (29  Pa.  St.  184), 

216. 
Wambole  v.  Foote    (2  Dak.   1), 

128. 
Wanless      v.      McCandless      (38 

Iowa,  20),  177. 
Ward  v.  Kohn  (7  C.  C.  A.  314), 

285. 
Ward  v.   Williams   (26  111.   447), 

87. 
Warner  v.  Martin  (11  How.   (U. 

S.)  209),  306. 
Warrall  v.  Munn   (5  N.  Y.  229), 

65,  84. 
Warren  v.  First  Nat.  Bank  (149 

111.  9),  310. 
Warren    Chemical    Co.    v.    Hol- 

brook  (118  N.  Y.  5S6),  120,  218. 
Washington  Nat.  Bank  v.  Pierce 

(6  Wash.  491),  246. 
Wassermann   v.   Sloss    (117  Cal. 

425),  33. 
Watteau    v.    Fenwick    (L.    R.    I. 

Q.  B.  Div.  34C),  139,  239. 


xxxvi 


TABLE  OF  CASES. 


[References 

Weber  v.  Bridgman    (113  N.  Y. 

600),  124. 
Webb    v.    Smith     (30    Ch.    Div. 

192),  293. 
Weber  v.  Shay  (56  Ohio  St.  116), 

33. 
Weed   v.   Black    (2  McArtb    (D. 

C.)  268),  33. 
Weeks  v.  Judges  (73  Mich.  256), 

287. 
Weisbrod    v.    Railway    Co.    (18 

Wis.  35),  42,  47. 
Welsh   v.    Hartford   F.   Ins.    Co. 

(73  N.  Y.  5),  137. 
West  v.  Camden  (135  U.  S.  507), 

33. 
Western    Mortg.    Co.    v.    Ganzer 

(11  C.  C.  A.  371),  247. 
Western     Publishing     House    v. 

Murdick  (4  S.  Dak.  207),  160. 
Wheeler    v.    McGuire    (86    Ala. 

398),  83,  117,  137,  139,  141,  142, 

154,  246. 
Wheeler  v.   Sleigh  Co.    (39  Fed. 

Rep.  347),  83. 
Wheeler   &   Wilson   Mfg.   Co.   v. 

Aughey    (144  Pa.   398),   83,  89. 
Whitcomb  v.  Bacon    (170   Mass. 

479),  302. 
White— ex    parte    (L.    R.    6   Ch. 

App.  397),  10. 
White  v.  Breen   (106  Ala.   159), 

64. 
White    v.  Cooper   (3    Penn.   St. 

130),  154. 
White  v.  Duggan  (140  Mass.  18), 

6L 
Whitley  Partners— In  re  (32  Ch. 

Div.  337),  30. 
Whitney    v.    Express    Co.     (104 

Mass.  152),  172. 
Whitney   v.   Wyman    (101  U.   S. 

392),  1C3. 

Whittemore  v.  Weiss   (33  Mich. 
348),  265. 


are  to  sections.] 

Wilbur  v.  Stoepel  (82  Mich.  344), 

33. 
Wilcox  &  G.  Sew.  Mach.  Co.  v. 

Ewing  (141  U.  S.  627),  115. 
Wildberger  v.  Hartford  Fire  Ins. 

Co.  (72  Miss.  338),  51. 
Wildner  v.   Ferguson    (42  Minn. 

112),   7. 
Willcox    v.     Hines     (100    Tenn. 

524),  73,  146. 
Williams    v.    Everett    (14    East, 

582),  209. 
Williams  v.  Fresno  Canal  Co.  (96 

Cal.  14),  63. 
Williams    v.    McKay    (40    N.    J. 

Eq.  189),  180. 
Williams  v.  Paine  (169  U.  S.  55), 

129. 
Wilson  v.  Commercial  Union  As- 

sur.  Co.  (51  S.  Car.  540),  139. 
Wilson  v.  Dame  (58  N.  H.  392), 

94,  215. 
Wilson  v.  Groelle  (83  Wis.  530), 

263. 
Wilson  v.  Mason   (158  111.  304), 

217. 
Wilson  v.  Minnesota  Ins.   Ass'n 

(36  Minn.  112),  246. 

Wilson  v.  Owens  (16  Ir.  L.  Rep. 

225),  253. 
Wilson    v.    Pauly    (18    C.    C.    A. 

475),  251. 

Wilson  v.   Tumman   (6  Mars.  & 

Gr.  236),   77. 
Wilson  v.  Wilson    (26   Penn  St. 

393),  183. 

Windberger  v.  Hartford  Fire 
Ins.  Co.    (72  Miss.  338),  166. 

Wing  v.  Milliken  (91  Me.  387), 
212. 

Winona  Lumber  Co.  v.  Church 
(6  S.  Dak.   498),  199. 

Wittenbrock  v.  Parker  (102  Cal. 
93),  250. 


TABLE  OF  CASES. 


[References   axe  to  sections.] 


XXXV 11 


Wood   v.   Dyers   (39   Mich.    345), 

215.       « 
Wood    v.    Manchester   Fire    Ins. 

Co.  (30  Misc.  R.  330),  33. 
Wood  v.  McCain  (7  Ala.  800),  15. 
Woodstock  Iron  Co.  v.  Richmond 

etc.  Co.  (129  U.  S.  643),  33. 
Worthington   v.  Gwin   (119  Ala, 

44),  244. 


Wright  v.  Compton  (53  Ind.  337), 

213. 
Wray    v.    Carpenter     (16    Colo. 

271),  217. 

Young  v.  Thurber  (91  N.  Y.  3S&). 
264. 

Zottman   v.    San   Francisco    (20 
Cal.  56),  75,  84. 


3<f7 


V  c 


/*/  /  fOL 


■ 


wi 


3  7  r^ 


/i3 

3 


INTRODUCTION 


The  subject  of  Agency  belongs  to  a  comparatively  re- 
cent period  in  our  law.  Blackstone  scarcely  refers  to  it. 

"The  law  of  principal  and  agent,"  says  Blackstone's 
learned  editor,  Professor  Hammond  (Bk.  I,  p.  710),  4,is 
derived  from  the  canon  law,  and  has  only  been  intro- 
duced into  the  common  law  in  recent  times.  If  the 
older  books  of  English  law  arc  examined,  no  such 
words  as  'principal  and  agent'  will  be  found  in  them. 
Wherever  any  question  is  discussed  which  would  now 
be  treated  under  that  head,  it  is  treated  of  as  master 
and  servant.  Principal  and  agent  does  not  occur  in 
Viner's  Abridgement,  or  those  preceding  it;  and  it  is 
only  at  the  end  of  the  eighteenth  century  that  we  find 
it  beginning  to  appear  as  a  separate  title,  as  yet  of 
very  limited  application." 

"As  late  as  Blackstone,"  says  Mr.  Justice  Holmes 
in  his  book  on  the  Common  Law  (p.  228),  "agents 
appear  under  the  general  head  of  servants,  and  the 
first  precedents  cited  for  the  peculiar  law  of  agents 
were  cases  of  master  and  servant.  Blackstone's  lan- 
guage is  worth  quoting:  'There  is  yet  a  fourth  species 
of  servants,  if  they  may  be  so  called,  being  rather  in 
a  superior,  a  ministerial  capacity;  such  as  steioards, 
factors,  and  bailiff'*:  whom,  however,  the  law  considers 
as  servants  pro  tempore,  with  regard  to  such  of  their 
acts  as  affect  their  master's  or  employer's  property.' 
(1  Comm.  427)." 

Agency  belongs  distinctively  to  a  commercial  ag>  , 
and  its  growth  has  kept  pace  with  the  progress  of  com- 
mercial development.    It  furnishes  the  means  by  which 


2  INTRODUCTION. 

the  range  of  individual  and  corporate  activity  is  enor- 
mously increased.  As  soon  as  it  is  conceded  that  one 
man  may  be  represented  by  another  in  business  trans- 
actions, and  that  he  may  have  as  many  such  repre- 
sentatives as  occasion  may  require,  the  field  of  commer- 
cial activity  is  immensely  widened.  The  modern 
business  man  may  thus  be  constructively  present  in 
many  places  and  carry  on  diverse  and  widely  separated 
industries  at  the  same  time. 

The  fundamental  maxim  of  Agency,  both  as  to  right 
and  liability,  is  Qui  facit  per  alium,  facit  per  se.  Its 
second  great  maxim,  also  of  right  and  liability,  refer- 
ring to  the  time  when  the  relation  is  created,  is  Omnis 
ratihabitio  retrotrahitur  et  mandato  priori  aequi- 
paratur. 

Agency  belongs  in  the  field  of  contract  law.  The 
relation  between  the  principal  and  his  agent  is,  as  will 
be  seen,  a  contractual  relation,  while  the  purpose  of  its 
creation  is  to  bring  about  contractual  relations  between 
the  principal  and  third  persons. 

.1     ;   .? 


1 


I  It 


Jl^\. 


OUTLINES    OF    THE 


LAW    OF    AGENCY 


CHAPTER  I. 


DEFINITIONS  AND  DISTINCTIONS. 


§  1.  Agency  defined. 

2.  Agency     is     a     contractual 

relation. 

3.  Can    usually   exist   only   by 

assent  of  the  principal. 

4.  Exceptions  —  Authority 

created  by  law. 

5.  How    agent   compares    with 

servant. 
G.  Distinction    usually   of 

little  practical  importance. 
7.  Occasionally  distinction 

important. 
S.  How    agent   compares    with 

independent  contractor. 
9.  Agency  differs  from  trust. 


§  10.  Agency  to  be  distinguished 
from  sale. 

11.  Agency  differs  from  lease. 

12.  The  contract  appointing  — 

Power  of  attorney. 

13.  Classification    of    agencies 

— Actual  or  ostensible. 

14-17.  Universal,    general 

and  special  agency. 

18.  How  to  be  proved. 

19-23.  Professional     and 

non-professional  agents. 

24-26.  Distinctions  be- 
tween these  classes  of 
agents. 


§  1.  Agency  defined. — Agency  is  a  legal  relation, 
founded  upon  the  express  or  implied  contract  of  the 
parties — or  created  by  law — by  virtue  of  which  one 
party — called  the  Agent — is  employed  and  authorized 
to  represent  and  act  for  the  other,  called  the  Principal 
— in  business  dealings  with  third  persons. 

It  Is  said  that  agency  is  a  "legal  relation."  It  is  unfortunate  that 
in  our  law  we  have  no  word  which  clearly  represents  the  idea  of 
such  a  relation  as  agency  or  partnership  and  at  the  same  time  dis- 
tinguishes it  from  other  relations.  The  word  "relation"  is  used  in  a 
great  many  senses.     We  speak  about  parties  coming  into  contract 

3 


4  DEFINITIONS  AND  DISTINCTIONS.  [§§1-2. 

relations  with  each  other,  as  when  A  and  B  enter  into  a  contract. 
When  a  tort  is  committed,  the  parties  are  also  often  said  to  come 
into  relations  with  each  other.  In  this  case,  however,  the  relation, 
if  it  be  such,  is  purely  a  temporary  one;  it  is  not  permanent. 

On  the  other  hand,  we  speak  of  the  relation  of  husband  and  wife, 
the  relation  of  parent  and  child,  or  the  relation  of  guardian  and 
ward.  In  these  cases  it  is  obvious  that  the  word  "relation"  is  used 
in  an  entirely  different  sense.  The  idea  of  permanence  is  involved, 
and,  more  than  all,  we  see  that  here  are  rights,  duties  and  liabilities 
which  the  law  rather  than  the  act  of  the  parties  has  created,  and 
which  the  parties  are  usually  unable,  by  any  act  or  agreement  of 
their  own,  to  alter  or  diminish.  To  such  relations,  in  order  to  dis- 
tingush  them  from  the  temporary  sort  above  referred  to,  the  term 
status  or  condition  is  often  applied.  Lying  between  the  casual  rela- 
tions first  referred  to  and  these  relations  of  status,  are  certain  others, 
more  permanent  than  the  first  class  and  more  open  to  contractual 
limitation  and  control  than  the  second — cases  wherein  the  parties 
have  agreed  to  occupy  certain  legal  relations  to  each  other  for  a  time 
subject  to  their  control  and  upon  conditions  largely  determinable 
by  their  agreement.  The  most  conspicuous  of  these  relations  are 
those  of  Agency,  Master  and  Servant,  and  Partnership. 

We  use  the  term,  legal  relation,  therefore,  not  to  distinguish  it 
from  illegal  relations,  but  to  indicate  that  this  is  a  relation  in  law — 
a  relation  which  the  law  recognizes. 

§2.  Agency  is  a  contractual  relation. —Agency 
is  a  contractual  relation  and  not  a  status.  Even 
though  it  be  conceded  that  it  finds  its  origin  in  the  re- 
lation of  master  and  servant  and  that  that  relation  was 
originally  the  relation  of  master  and  slave,  it  is  clear 
enough  that,  regarded  as  an  instrument  for  creating 
contractual  obligations  between  the  principal  and  third 
persons,  agency  does  not  exhibit  those  essential  char- 
acteristics of  status  necessary  to  mark  it  as  such.  As 
stated  by  Sir  William  Anson,  "so  far  as  we  are  con- 
cerned with  Agency  for  the  purpose  of  creating  con- 
tractual relations,  it  retains  no  trace  in  English  law  of 
its  origin  in  status.  Even  where  a  man  employs  as 
his  agent  one  who  is  incapable  of  entering  into  a  con- 
tract with  himself,  as  where  he  gives  authority  to  his 
child,  being  an  infant,  the  authority  must  be  given,  it 


§§   2-4.]  DEFINITIONS   AND  DISTINCTIONS.  5 

4 

is  never  inherent.  There  must  be  evidence  of  intention 
on  the  one  side  to  confer,  on  the  other  to  undertake, 
the  authority  given,  though  the  person  employed  may, 
from  defective  status,  be  unable  to  sue  or  be  sued  on 
the  contract  of  employment." 

See  Anson  on  Contract,  330. 

§  3.  Can  usually  exist  only  by  assent  of  the  prin- 
cipal.— As  a  rule,  therefore,  authority  to  act  as  agent 
can  exist  only  by  the  express  or  implied  assent  of  the 
principal,  either  previously  given  or  subsequently  con- 
ferred. 

We  shall  find  hereafter  that  there  may  be  express  creations  of 
the  relation  and  implied  creations.  In  fact,  we  shall  doubtless  find 
that  the  cases  in  which  the  existence  of  the  relation  is  implied  from 
the  acts  of  the  parties  are  the  more  numerous. 

It  is  not  at  all  necessary  that  the  authority  shall  have  been  con- 
ferred in  advance,  although  it  commonly  is.  After  the  act  has  been 
done,  the  authority  may  be  conferred  and,  by  retroactive  effect,  it 
goes  back  to  the  beginning. 

§4.    — Exceptions — Authority  created  by  law. — 

In  a  few  cases,  however,  authority  to  act  as  agent  lor 
certain  purposes  arises  by  mere  operation  of  law,  as  an 
incident  of  some  other  relation  in  which,  the  parties  al- 
ready stand.   Of  these  cases  there  are  four  chief  types : 

(1)  The  authority  of  the  wife  to  buy  necessaries  on 
her  husband's  credit. 

(2)  The  similar  authority  of  an  infant  child  to  bay 
necessaries,  in  certain  cases,  upon  his  father's  credit 

(3)  The  authority  of  the  vendor  of  personal  prop- 
erty in  certain  cases  to  sell  the  goods  still  in  his  posses- 
sion to  secure  his  pay. 

(4)  The  authority  of  a  ship-master  to  buy  neces- 
saries on  the  owner's  credit. 

In  these  cases  the  assent  of  the  principal  is  not  neces- 
sary, and  his  dissent  would  in  most  cases  be  unavailing. 


6  DEFINITIONS  AND  DISTINCTIONS.  [§§   4-5. 

This  authority  is  said  to  be  created  by  law,  or  to  be 
authority  by  necessity. 

§  5.  How  agent  compares  with  servant. — The  rela- 
tion of  principal  and  agent  bears  a  close  resemblance  to 
that  of  master  and  servant,  but  is  not  identical  with  it. 

The  characteristic  of  the  agent  is  that  he  is  a  busi- 
ness representative.  His  function  is  to  bring  about 
contractual  relations  between  his  principal  and  third 
persons. 

The  function  of  the  servant  is  to  execute  the  com- 
mands of  his  master  chiefly  in  reference  to  tilings,  but 
occasionally  with  reference  to  persons  when  no  con- 
tractual obligation  is  to  result. 

A  person  who  is  ordinarily  a  servant  may  at  times 
act  as  agent,  and  vice  versa. 

"The  distinction  between  a  servant  and  an  agent,"  it  is  said  by 
Mr.  Justice  Holmes  in  his  edition  of  Kent's  Commentaries  (Vol.  2, 
p.  260,  note),  "is  the  distinction  between  serving  and  acting  for." 

When  I  employ  an  agent,  I  am  seeking  to  employ  some  one  who 
shall  represent  me  in  business  dealings  with  other  persons.  The 
purpose  of  the  employment  of  the  agent  and  his  authorization  is  to 
represent  me  and  to  deal  for  me  with  other  persons.  He  is  to  come 
in  contact  with  other  persons  and  he  is  to  enter  into  contractual 
relations  for  me  with  them. 

On  the  other  hand,  if  I  want  a  ditch  dug  or  any  other  kind  of 
manual  service  performed,  the  only  thing  that  the  person  I  employ 
has  to  do  is  to  deal  with  things.  The  main  purpose  of  his  employ- 
ment is  to  accomplish  some  kind  of  manual  labor  and  not  to  make 
contracts  at  all.  He  has  neither  occasion  nor  authority  to  effect 
contractual  relations  or  impose  contractual  obligations  upon  me  to 
another  person.    Such  a  person  is  a  servant. 

If  I  say  to  A,  "Go  into  the  market  and  buy  me  a  horse,"  my 
purpose  is  that  he  shall  go  out  and  find  a  person  who  has  a  horse 
for  sale  and  make  a  contract  with  that  person  to  sell  that  horse  to 
me.  A  is  here  an  agent.  If,  when  he  brings  the  horse  to  me,  I  say 
to  him,  "Put  the  horse  in  the  stable  and  care  for  him,"  and  A  does 
so,  he  then  is  a  servant. 

There  are  cases,  of  course,  in  which  the  servant  is  to  come  into 
contact  with  other  persons.  The  porter  on  a  parlor  car  is  an  illus- 
tration.    Although  a  large  portion  of  his  duties  may  be  to  assist 


§§  5-7.]  DEFINITIONS  AND  DISTINCTIOl  7 

passengers  and  look  out  for  their  comfort,   he  is  a  servant.     The 
case  of  the  conductor  is  not  so  simple.     If  he  has  no  other  duties 
than  to  manage  the  train;    if  he  has  no  power  to  make  contr 
for  carriage;    if  his  sole  duty  is  to  collect  tickets  a:  re  is  no 

occasion  in  which  he  has  the  right  to  enter  into  contractual  rela- 
tions for  his  employer,  then  he  will  be  purely  a  servant. 

If,  on  the  other  hand,  he  is  authorized  not  only  to  manage  the 
train  but  to  make  contracts  for  carriage,  to  collect  pay,  to  make  the 
ordinary  bargains  that  are  made  between  carrier  and  passenger, 
then  he  is  also  an  agent.  It  is  obvious,  therefore,  that  the  p.me  per- 
son may  be  at  times  a  servant  and  at  times  an  agent. 

The  agent  usually  is  vested  with  more  or  less  discretion,  while 
the  servant  is  commonly  required  to  act  according  to  the  directions 
of  his  master;  and  this  has  sometimes  been  suggested  as  the  basis 
for  distinguishing  between  the  two  relations. 

See  Baltimore  &  Ohio  Employees'  Relief  Ass'n  v.  Post,  122  Pa. 
St.  679,  9  Am.  St.  Rep.  147. 

The  true  distinction,  however,  is  believed  to  be  that  already  men- 
tioned. 

§  6.  Distinction  usually  of  little  practical  im- 
portance.— The  distinction  between  the  two  relations, 
though  in  many  aspects  radical  in  theory,  is,  usually, 
not  of  much  practical  importance,  as  the  same  rules 
of  law,  in  general,  apply  equally  to  both  relations. 

There  is,  in  many  quarters,  a  somewhat  absurd  repugnance  to  the 
U6e  of  the  word  "servant,"  because  it  is  supposed  to  emphasize  social 
distinctions  which  ought  not  to  exist  among  us.  This  leads,  in 
popular  language,  to  the  substitution  of  the  word  "agent."  and  this 
popular  use  is  often  exhibited  by  the  courts,  with  the  result  that 
even  in  legal  language  the  word  "agent"  is  coming  to  be  more  and 
more  used  where  the  word  "servant"  would  be  more  appropriate. 
Fortunately  it  is  usually  immaterial  and  leads  to  uo  serious  diffi- 
culty. 

§  7.     Occasionally    distinction     important. — 

There  is,  however,  occasionally  a  case  in  which  the  dis- 
tinction becomes  important.     A  statute,  for  example, 
may  use  one  word  or  the  other    under    circumstances 
which  call  for  strict  construction,  and  it  then  becoi 
important  to  distinguish. 

Regina  v.  Walker,  Agency  Cases,  1,  is  a  case  of  this  nature. 
What  was   the  point  there   involved?     Wakefield  v.  Fargo,  Agency 


S  DEFINITIONS  AND  DISTINCTIONS.  [§§  7-8. 

Cases,  4,  presents  another  illustration.  What  was  the  question 
there?  Hamberger  v.  Marcus,  157  Pa.  St.  133;  Wildner  v.  Ferguson, 
42  Minn.  112,  6  L.  R.  A.  338,  and  Lewis  v.  Fisher,  80  Md.  139,  45 
Am.  St.  Rep.  327,  present  olher  illustrations. 

In  Singer  Mfg.  Co.  v.  Rahn,  Agency  Cases,  8,  was  Corbett  an 
agent  or  a  servant?  In  "Wilson  v.  Owens,  Agency  Cases,  9,  in  what 
relation  did  Egan  stand?  "What  is  said  here  as  to  the  similarity  of 
the  two  relations? 

In  Tete  v.  Lanaiix  (1893),  45  La.  Ann.  1343,  14  So.  Rep.  241, 
there  was  a  necessity,  in  view  of  a  peculiar  statute,  to  determine 
whether  a  certain  person  was  a  clerk,  or  a  broker.  Said  the  court: 
"A  clerk  is  one  who  hires  his  services  to  an  employer  at  a  fixed 
price  under  a  stipulation  to  do  and  perform  some  specific  duty  or 
labor  which  requires  the  exercise  of  skill.  'The  broker  is  he  who  is 
employed  to  negotiate  a  matter  oeiween  two  parties,  and  who  for  that 
reason  is  the  mandatory  of  both.'  R.  C.  C.  3016.  The  leading  and 
essential  difference  between  a  clerk  and  a  broker  is  that  the  former 
hires  his  services  exclusively  to  one  person,  while  the  latter  is 
employed  to  make  bargains  and  contracts  between  other  persons 
in  matters  of  trade,  commerce  and  navigation.  For  the  services  of 
the  former  there  is  a  fixed  stated  salary,  while  for  the  latter  a  com- 
pensation, commonly  styled  brokerage,  is  allowed." 

§  8.  How  agent  compares  with  "independent  con- 
tractor." — The  agent — and   the  servant   also — is  fur- 

— .iii.ii    i,imJb^mtfm\*'*k- 

ther  to  be  distinguished  from  the  "independent  con- 
Uunjjg"  who  is  one  who  exercises  some  independent 
employment,  in  the  course  of  which  he  undertakes  to 
accomplish  a  certain  result,  being  responsible  to  his 
employer  for  the  end  to  be  achieved  and  not  for  the 
means  by  which  he  accomplishes  it. 

Judging  from  what  has  been  already  said,  does  the  servant  or 
the  agent  more  closely  resemble  the  independent  contractor?    Why? 

Thus  in  a  recent  case  wherein  a  loaded  vessel  ju3t  leaving  port 
was  found  to  be  on  fire,  and  the  master  employed  S.  &  Co.,  who  were 
doing  business  as  shipping-merchants,  to  take  charge  of  her  and 
rescue  her  cargo,  the  court  said:  "The  employment  of  S.  &  Co., 
under  these  facts,  was  something  more  than  the  appointment  of  an 
agent.  It  was  more  in  the  nature  of  an  employment  or  hiring  than 
an  appointment  to  an  agency.  It  was  in  the  nature  of  a  contract 
between  the  captain  of  the  vessel,  as  the  owner's  agent,  and  S.  &  Co., 
whereby  the  latter  agreed  to  extinguish  the  fire,  and  if  necessary 
unload  the  vessel  of  its  cargo,  and  do  everything  else  for  the  pro- 


8§  810]  DEFINITIONS  AND  DISTINCTIONS.  9 

tection  of  the  vessel  and  cargo.  They  were  employed  to  do  a  par- 
ticular thing,  and  were  contractors,  Instead  of  agents,  in  the  general 
understanding  of  agency." 

See  Horan  v.  Strachan  (1890),  80  Ga.  408,  12  S.  E.  Rep.  C78,  22 
Am.  St.  Rep.  471. 

§9.     Agency  differs  from   trust. — Agency  differs 

in  material  respects  from  the  ordinary  trust. 

See  Hartley  v.  Phillips,  (1901),  198  Pa.  9,  47  Atl.  Rep.  929; 
Knowles  v.  Scott,  [1891]  1  Ch.  717;  James  v.  Smith,  [1891]  1  Ch. 
384;    Cleghorn   v.   Castle,    (1900)    13   Hawaiian   186. 

It  is  true  that  agency  is  often  said  to  be  a  relation 
of  trust  and  confidence,  and  that  property  in  the  hands 
of  an  agent  is  often  held  to  be  impressed  with  a  trust 
for  the  benefit  of  the  principal,  yet  the  two  relations 
are  not  identical._3— truetr-m-vohes  control  over  prop- 
erly, ageney  may  be  totally  disconnected  with  any  pa> 
ticular  property.  __The_Jjais4eeIJoIds'a  legal__UtieJLJhe 
agent  has  usually  no  title  at  all.  The  trustee  may  act 
hrins  own  name,  the  agent  acts  normally  in  the  name 
of  his  principal.  Trust  is  not  necessarily  a  contract 
relation,  agency  is  properly  to  be  so  regarded.  A  trust 
does  not  necessarily  or  even  usually  involve  any  author 
ity  to  enter  into  contracts  which  shall  bind  another, 
the  authority  to  make  such  contracts  is  the  distinguish- 
ing characteristic  of  agency.  Other  distinctions  exist 
but  these  are  sufficient  to  mark  the  contrast. 

See,  for  example,  Central  Stock  Exchange  v.  Bendinger,  (1901), 
48  C.  C.  A.  726,  109  Fed.  Rep.  926,  56  L.  R.  A.  875. 

§  10.  Agency  to  be  distinguished  from  sale. — 
Agency  is  further  to  be  distinguished  from  sale.  Not 
that  thi"1  two  contracts  are  not  ordinarily  readily 
enough  distinguished,  but  because  so  many  cases  arise 
wherein  either  through  inadvertence  or  design  con- 
tracts have  been  given  some  of  the  characteristics  of 
each,  and  it  is  necessary  to  decide  which  of  them  so 


10  DEFINITIONS  AND  DISTINCTIONS.  [§§  10-18. 

predominate  as  to  determine  the  nature  of  the  trans- 
action. A  typical  ease  is  presented  where  goods  are 
put  into  the  nanas  of  a  person  under  a  contract  which 
in  seme  of  its  parts  seems  to  treat  that  person  as  an 
absolute  purchaser  of  the  goods  and  in  other  parts 
merely  as  an  agent  to  sell  them.  No  hard  and  fast  rule 
can  be  laid  down  for  the  determination  of  these  contro- 
versies. Names  go  for  very  little,  and  if  the  parties 
have  made  a  contract  which  really  operates  to  transfer 
the  title  it  must  be  deemed  a  sale,  even  though  the 
parties  have  expressly  declared  that  it  shall  be  deemed 
an  agency. 

See  Mechem  on  Sales,  §§  41-49;  Ex  parte  White,  (1871),  L.  R. 
6  Ch.  App.  397;  Arbuckle  v.  Kirkpatrick  (1897),  98  Tenn.  221,  39 
S.  W.  R.  3,  36  L.  R.  A.  285,  60  Am.  St.  Rep.  854;  Braunn  v.  Keally, 
(1892),  146  Pa.  St.  519,  23  Atl.  R.  389,  28  Am.  St.  Rep.  811;  Nor- 
wegian Plow  Co.  v.  Clark  (1897),  102  Iowa  31,  70  N.  W.  Rep.  808. 

§11.  Agency  differs  from  lease. — So  agency  may 
be  distinguished  from  lease.  As  in  the  preceding  case 
of  sale,  the  tAvo  contracts  are  usually  very  much  un- 
like; but,  here  as  there,  cases  are  met  with  wherein 
one  relation  has  apparently  been  disguised  under  the 
name  of  the  other.  Here  as  there,  also,  names  are  of 
no  consequence,  and  the  true  nature  of  the  contract 
determines  the  case.  If,  therefore,  though  the  contract 
be  called  a  lease,  the  alleged  tenant  is  so  far  under  the 
direction  and  control  of  the  alleged  landlord  as  to  make 
the  latter  the  real  party  in  interest  and  the  former 
merely  his  representative,  the  contract  will  be  held  to 
be  one  of  agency. 

See  Petteway  v.  Mclntyre,— N.  Car.  — ,  42  S.  E.  Rep.  851. 

§  12.  The  contract  appointing — "Power  of  attor- 
ney."— The  contract  by  which  the  relation  of  principal 
and  agent  is  created  is  called  a  "contract  of  agency"; 
the  right  of  the  agent  to  represent   the  principal  is 


§§  12-13.]  DEFINITIONS  AND  DISTINCTIONS.  11 

called  his  '-authority"  or  "power" j  whejj  the,  authority 
is  conferred  by  formal  instrument  in  writing,  it  is  said 
to  be  confi  ired  by  "letter  of  attorney,"  or,  more  com- 
monly by  "power  of  attorney."  When  the  authority  is 
conferred  by  power  of  attorney,  the  agent  is  frequently 
called  an  "attorney,"  or  more  commonly,  an  "attorney 
in  fact." 

If  an  agent  is  called  upon  to  execute  a  deed,  he  signs  it,  "John 
Smith,"  as  principal,  "by  Richard  Roe,  his  attorney,"  or,  more  com- 
monly, "his  attorney  in  fact";  he  may  say.  "agent."  The  words, 
"attorney  in  fact,"  are  used  chiefly  to  distinguish  him  from  an 
attorney  at  law. 

See  Loudon  Savings  Fund  Society  v.  Hagerstown  Savings  Bank, 
3G  Pa.  St.  498,  78  Am.  Dec.  390,  Cas.  Ag.  371. 

§  13.  Classification  of  agen  -ies — Actual  or  osten- 
sible.— Agencies  are  sometimes  classified  as  actual  or 
ostensible. 

The  agency  is  actual  when  the  agent  has  really  been 
employed  and  authorized  by  the  principal;  the  agency 
is  ostensible  when  the  principal  intentionally,  or  by 
want  of  ordinary  care,  leads  a  third  person  to  believe 
another  to  be  his  agent  who  has  not  really  been  em- 
ployed and  authorized  by  him. 

This  distinction  is  one  which  is  made  in  the  Code  of  California, 
and  has  been  adopted  by  several  of  the  States  in  enacting  their 
Codes. 

A  man  is  an  actual  agent  when  he  really  has  been  employed,  but 
he  is  an  ostensible  agent  when  the  principal,  either  intentionally  or 
by  want  of  ordinary  care,  has  held  him  out  as  though  he  were  agent. 
So  far  as  third  persons  are  concerned,  it  usually  makes  no  difference 
whether  the  agen  actual  or  ostensible.     If  one  person  causes 

another  reasonably  to  believe,  and  to  act  upon  the  belief,  that  a  cer- 
tain man  is  his  agent,  then,  so  far  as  that  other  person  is  concerned, 
the  assumed  agent  is  agent.  The  agent  always  knows  whether  he  has 
been  employed,  the  principal  always  knows.  As  between  themselves 
there  is  no  difficulty.  Third  persons,  however,  cannot  usually  know 
whether  he  has  really  been  employed  or  not,  but  if  the  principal 
leads  the  third  person  to  believe  that  the  man  is  an  agent,  then  tl  ! 
principal  is   bound. 

This  distinction  runs  all  through  the  law  of  agency. 


12  DEFINITIONS  AND  DISTINCTIONS.  [§  14. 

§  14.    Universal,  general  and  special  agency.— 

The  most  important  classification  of  agencies  is  that 
based  upon  the  nature  and  extent  of  the  authority  con- 
ferred into  universal,  general,  and  special  agencies. 

A  universal  agent  is  one  authorized  to  do  all  acts  for 
his  principal  which  can  lawfully  be  delegated  to  an 

agent. 

A  general  agent  is  one  having  general  authority  to 
act  in  reference  to  some  transaction  or  to  some  kind 
or  series  of  transactions. 

A  special  agent  is  one  authorized  to  act  only  in  a  par- 
ticular event  and  in  accordance  with  specific  instruc- 
tions. 

The  distinction  between  the  general  and  the  special  agent  Is 
not  always  easy  to  draw,  and  courts  and  writers  have  not  agreed 
upon  the  basis  of  it.  judge  Story  has  said:  "A  special  agency 
properly  exists,  when  there  is  a  delegation  of  authority  to  do  a  single 
act;  a  general  agency  properly  exists  where  there  is  a  delegation  to 
do  all  acts  connected  with  a  particular  trade,  business  or  employ- 
ment." Story  on  Agency,  §17.  Professor  Parsons  has  said:  "A 
general  agent  is  one  authorized  to  transact  all  his  principal's  busi- 
ness, or  all  his  business  of  some  particular  kind.  A  particular 
[special]  agent  is  one  authorized  to  do  one  or  two  special  things." 
1  Parsons  on  Contracts,  *41.  Mr.  Evans  says:  "General  agents  are 
such  as  are  authorized  to  transact  all  business  of  a  particular  kind; 
whilst  a  special  agent  is  authorized  to  act  only  in  a  single  transac- 
tion."    Evans  on  Agency  (Ewell's  ed.)  p.  2. 

Mr.  Wright  says  that  the  general  agent  "is  usually  a  person  to 
whom  the  principal  has  entrusted  the  management  of  a  particular 
business,  such  as  an  estate  agent,  or  the  manager  of  a  business; 
while  the  special  agent  is  an  agent  given  authority  to  deliver  a 
particular  message  or  buy  a  particular  thing  on  one  occasion,  or 
do  some  special  thing,  and  has  no  implied  authority  aliunde  from 
his  position  or  the  nature  of  his  business."  Wright  on  Principal  and 
Agent,  2d  ed.  87,  88. 

Something  of  the  distinction  may  be  made  clear  by  an  illustra- 
tion. If  I  have  a  business  which  I  cannot  conduct  In  person,  I  may 
employ  an  agent  to  manage  it  for  me.  In  the  very  nature  of  the 
case,  however,  in  conferring  his  authority,  I  must  do  so  in  general 
terms.  I  cannot  easily  do  more  than  to  empower  him  to  manage  it 
\ccording  to  his  best  judgment  for  my  best  interest.    I  cannot  well 


IS  14-17.]  DEFINITIONS   AND  DISTINCTIONS.  13 

go  Into  details  and  prescribe  how  he  shall  conduct  himself  and  what 
he  shall  do  In  all  the  multitudinous  contingencies  which  may  arise. 
I  must  give  him  authority  in  general  terms  and  leave  the  details  to 
his  discretion.  On  the  ether  hand,  if  I  need  a  hor  .  I  may  send  a 
person  into  the  market  to  buy  one  only  on  condition  that  it  shall  be 
of  the  age,  size,  color,  weight,  disposition,  speed  and  price  which  I 
prescribe.  This  case  admits  of  special  and  particular  instructions; 
the  other  did  not.  The  former,  the  business  manager,  would  be  a 
general  agent.  The  latter,  who  is  to  buy  the  horse,  would  be  a  spe- 
cial agent.  But  suppose  I  say  to  an  agent,  ''Go  into  the  market  and 
buy  me  a  horse,"  and  limit  him  neither  as  to  age,  size,  color,  price 
or  otherwise.  What  kind  of  an  agent  is  he?  He  has  general 
power,  but  is  to  act  only  on  a  particular  occasion.  It  is  believed 
that  the  nature  cf  his  power  is  the  chief  criterion,  and  that  the  dis- 
tinction between  the  special  and  the  general  agent  is  one  of  degree 
merely  and  not  of  kind. 

Formerly  very  important  results  were  made  to  flow  from  this 
distinction;  but  the  modern  tendency  is  to  minimize  it,  if  not  to 
ignore  it  altogether. 

See  Butler  v.  Maples,  9  Wall.  766,  Cas.  Ag.  340;  Loudon  Savings 
Fund  Society  v.  Hagerstown  Savings  Bank,  36  Pa.  St.  498,  78  Am. 
Dec.  390,  Cas.  Ag.  371. 

§  15. It  has  been  said  that  a  principal  can 

have  but  onejiniYersa  1  agent,  and  it  has  been  doubted 
whether  such  an  agency  could  practically  exist.  It  can 
only  be  created,  if  at  all,  by  clear  and  unambiguous  lan- 
guage, and  will  not  be  inferred  from  any  general  ex- 
pressions, however  broad. 

See  Gulick  v.  Grover,  33  N.  J.  L.  463,  97  Am.  Dec.  72S;  Barr  v. 
Schroeder,  32  Cal.  609;  Wood  v.  McCain,  7  Ala.  800,  42  Am.  Dec.  612. 

§  10.    A    principal   may   have   several   general 

agents  and  as  many  special  agents  as  occasion  may 
require. 

§  17.     The  same  person  may  at  one  time  or  in 

regard  to  one  transaction  be  a  special  agent  of  his  prin- 
cipal and  at  another  time  or  in  reference  to  other  trans- 
actions he  may  be  a  general  agent.  So,  though  he  may 
be  authorized  to  act  only  in  a  particular  case  he  may, 
with  respect  of  that  transaction,  have  general  power. 


14  DEFINITIONS  AND  DISTINCTIONS.  [§§  17-22. 

See  Jeffrey  v.  Bigelow  (1835),  13  Wend.  (N.  Y.)  518,  28  Am.  Dec. 
476. 

§  18.     How  to  be  proved. — Whether  an  agency 

is  general  or  special  is  usually  a  fact  to  be  proved.  The 
law  itself  makes  no  abstract  presumption  in  reference 
to  it,  though  when  an  agency  is  once  shown  to  exist, 
the  law  would  presume  it  general  rather  than  special. 

It  is  always  true  that  anybody  who  relies  upon  the  existence  of 
agency  has  imposed  upon  him  the  burden  of  proving  it.  He  must 
not  only  prove  that  it  exists,  but  he  must  also  show  what  kind~oTan 
agency  it  is.  The  law  never  simply  presumes  that  agency  exists, 
and  it  never  simply  presumes  that  an  agent  is  general  or  special. 
When  it  appears  that  an  agency  does  exist,  the  court,  if  it  makes 
any  presumption  at  all,  presumes  it  to  be  general  rather  than  lim- 
ited, but,  speaking  generally,  the  fact  of  the  agency  must  be  shown 
and  also  the  nature  and  extent  of  it. 

See  Savings  Fund  Society  v.  Savings  Bank,  Cas.  Ag.  371. 

§  19.    Professional  and  non-professional  agents. 

—Agents  may  further  be  classified  as  professional  and 
n  o  n-p  r  of  ess  iona  I. 

Of  the  professional  agents,  the  most  important  are 
the  attorney  at  law,  the  auctioneer,  the  broker  and  the 
factor. 

§20.  The  attorney  at  law  is  one  whose  profes- 
sion it  is  to  give  advice  and  assistance  in  legal  matters, 
and  to  prosecute  and  defend  in  the  courts  the  causes  of 
those  who  may  employ  him  for  that  purpose. 

§  21.     The  auctioneer  is  one  whose  business  it  is 

to  sell  or  dispose  of  property,  rights  or  privileges,  at 
public  competitive  sale,  to  the  person  offering  or  ac- 
cepting the  terms  most  favorable  to  the  owner. 

§  22.     The  broker  is  one  whose  business  it  is  to 

bring  parties  together  to  bargain,  or  to  bargain  for 
them,  in  matters  of  trade,  commerce  or  navigation. 
Brokers  are  of  many  kinds,  such  as  merchandise  brok- 


X 


y. 


§§  22-26.]  DEFINITIONS  AND  DISTINCTIONS.  US 

ers,  stock-brokers,  insurance  brokers,  peal  estate 
brokers,  and  tlie  like. 

§23.     The  factor  is  one  whose  business  il   is  to 

receive  and  sell  goods  for  a  commission.  He  is  often 
called  a  commission-merchant.  If  he  guarantees  pay- 
ment for  the  goods  he  sells,  he  is  said  to  act  under  a 
del  credere  commission.  When  authorized  t<>  sell  a 
cargo  which  he  accompanies  on  the  voyage,  he  is  called 
a  super-cargo. 

§  24.    Distinctions  between  these  classes  of 

agents. — These  various  classes  of  agents  differ  mate- 
rially from  each  other.  Thus  the  auctioneer  is  em- 
ployed to  sell  or  dispose  of  only,  and  not  to  buy,  and  his 
sales  are  always  public,     lie  is  primarily  the  agent  of 

(lie  seller   only,    blit    lie   becomes    the   agent    of   the  bliyei; 

also  when  he  accepts  his  bid  and  enters  his  name  upon/ 
the  memorandum  of  the  sale. 

§  25.     The  broker  sells  at  private  sale,  and  has 

not  usually  the  possession  of  the  goods  or  property 
which  he  sells,  lie  is  regarded  as  the  agent  of  the  per- 
son who  first  employs  him,  and  he  can  not  represent 
both  parties  to  the  transaction  unless  with  full  knowl- 
edge of  his  relations  to  the  other  each  principal  sees  fit 
to  confide  his  interests  to  him.  The  broker  acts  prop- 
erly in  the  name  of  his  principal  only,  and  he  has  not 
usually  any  property  in  his  possession  upon  which  he 
could  claim  a  lien. 

§  26.  The  factor  is  entrusted  with  the  posses- 
sion of  the  goods,  and  sells  usually  in  his  own  name. 
Unlike  the  auctioneer,  his  sales  are  private.  The  factor 
has  a  special  property  in  the  goods,  a  lien  upon  them 
for  his  advances  and  charges,  and,  unless  restricted, 
may  sell  upon  a  reasonable  credit. 

Each  of  these  different  classes  of  agents  will  be  more 
fully  considered  hereafter. 


16 


FOR  WHAT  PURPOSES  CREATED. 


[§§  27-29. 


CHAPTER  II. 

FOR  WHAT  PURPOSES  AN  AGENCY  MAY  BE  CREATED. 


§  33. 

34. 


Illustrations. 
Validity    as    between 


principal  and  agent. 
35.  How  when  contract  il- 
legal in  part. 


§  27.  The  general  rule. 

28.  The  exceptions. 

29.  The  first  exception. 

30.  Illustrations. 

31.  The  second  exception. 

32.  How  these  cases  re- 
garded in  law. 

§  27.  The  general  rule. — It  is  the  general  rule  that 
an  agency  may  be  created  for  the  transaction  of  any 
lawful  business-,  and  that  whatever  a  person  may  law- 
fully do,  if  acting  in  his  own  right  and  in  his  own  be- 
half, he  may  lawfully  delegate  to  an  agent. 

§  28.  The  exceptions. — The  cases  is  which  authority 
cannot  lawfully  be  delegated  fall  into  one  or  the  other 
of  two  general  classes: 

I.  Authority  cannot  be  delegated  for  the  perform- 
ance of  an  act  which  from  its  nature  or  the  terms  of 
the  law  requiring  it,  can  only  be  performed  by  the 
principal  in  person.  The  rule  in  this  class  of  cases  is 
sometimes  stated  in  this  way :  that  authority  cannot  be 
delegated  for  the  performance  of  a  purely  personal 
duty. 

II.  Authority  cannot  be  delegated  to  do  an  act 
which  is  illegal,  immoral  or  opposed  to  public  policy. 

§20.  The  first  exception. — It  is  a  general  rule 
that  a  personal  duty,  trust  or  confidence  imposed  upon 
one  person  cannot  be  delegated  by  him  to  another.  So, 
"if  a  public  duty  or  trust  is  imposed  on  anyone,  these, 
not  being  things  which  one  does  in  his  own  right,  can- 
not be  delegated,  but  must  be  performed  personally." 


§§  29 -31.]  FOR  WHAT  PURPOSES  CREATED.  17 

It  is  this  principle  which  creates  the  limitation,  here- 
after to  be  considered,  upon  the  power  of  an  agi  q1  to 
delegate  Ins  agency.  But  the  same  rule  may  operate  in 
some  cases  upon  the  principal,  and  it  prevents  him 
from  delegating  to  an  agent  those  things  which  by  stat 
ute,  custom  or  the  inherent  nature  of  the  act  are  re- 
quired to  be  done  by  him  in  person. 

See  United  States  v.  Bartlett,  Dav.  9,  24  Fed.  Cas.  1021;  Combes' 
Case,  9  Co.  76,  b. 

§30.    Illustrations. — Thus,    for    example,    an 

elector  who  is  entitled  to  vote  at  a  public  election  must 
do  so  in  person,  and  can  not  vote  by  agent.  And  where 
a  statute  required  an  affidavit  to  be  made  concerning 
matters  peculiarly  within  the  knowledge  of  a  certain 
person,  it  was  held  that  he  must  make  the  affidavit  him- 
self, and  that  one  made  by  an  agent  would  not  suffice. 

See  Mechem  on  Public  Officers,  §  187;  United  States  v.  Bartlett 
supra. 

So  it  has  been  held  that  power  to  make,  under  a 
statute,  an  assignment  for  the  benefit  of  creditors  can 
not  be  delegated  to  an  agent,  the  court  saying:  "Where 
an  act  authorized  by  statute  must,  from  its  nature  or 
the  necessary  construction  of  the  statutory  authority, 
be  done  in  person — for  example,  the  statute  authoriz- 
ing a  party  to  make  his  will — the  power  to  do  the  act 
cannot  be  delegated.  Such  cases  fall  within  the  excep- 
tion to  the  general  rule  that  a  person  may  authorize 
another  to  dispose  of  his  property  for  him  in  any  man- 
ner he  himself  may  do." 

See  Minneapolis  Trust  Co.  v.  School  District,  (1897)  6S  Minn. 
414,  71  N.  W.  Rep.  679.  Compare  In  re  Whitley  Partners  (1886) 
32  Ch.  Div.  337;  Hyde  v.  Johnson,  2  Bing.  N.  C.  776,  29  Eng.  Com. 
L.   488. 

§31.  The  second  exception. — Under  the  second 
head   the  rule   is,  that  the  law  will   not    sanction  the 


IS  FOR  WHAT  PURPOSES   CREATED.  t§§  31-33. 

creation  or  enforce  the  performance  of  an  agency  which 
has  for  its  purpose  or  which  naturally  and  directly 
tends  to  promote,  the  commission  of  an  act  which  is 
cither  illegal  or  immoral  in  itself,  or  which  is  opposed 
to  public  policy. 

It  may  be  thought  at  first  view  that  this  is  not  an 
exception  to  the  rule  at  all— that  the  principal  himself 
could  not  do  any  of  the  acts  which  are  so  condemned. 
This,  of  course,  might  be  true  of  certain  of  them,  but 
there  are  still  many  cases  wherein  one  might,  with  im- 
punity, act  in  person,  but  could  not  appoint  an  agent 
to  act  for  him.  Thus,  for  example,  one  may  very  fre- 
quently resort  to  personal  persuasion  to  procure  legis- 
lation, or  obtain  a  contract  or  a  pardon  by  personal 
influence,  and  incur  thereby  no  legal  penalty,  because 
no  express  statute  has  made  it  an  offense.  Such  prac- 
tices, however,  are  undesirable,  because  they  tend  to 
substitute  personal  influences  for  considerations  of  the 
public  good.  They  are  opposed  to  public  policy,  and 
though  the  law  may  not  reach  them  directly,  it  will  at 
least  refuse  to  lend  its  aid  to  enforce  them. 

§  32.    How  these  cases  regarded  in  law.  — The 

law  scrutinizes  undertakings  of  this  nature  with  great 
strictness,  and  judges  of  their  validity  by  their  general 
nature  and  natural  and  probable  results.  It  makes  no 
difference  that  in  the  particular  case  nothing  improper 
was  done  or  intended  to  be  done.  The  law  determines 
the  case  by  the  tendency  of  undertakings  of  that  kind, 
and  holds  the  particular  contract  unlawful  if  its  gen- 
eral nature  brings  it  within  the  prohibited  class. 

§  33.    Illustrations. — The  cases  which  fall  under 

this  prohibitum  are  exceedingly  numerous,  but  a  few 
classes  will  be  mentioned. 

Thus,  contracts  for  employment  which  lead  the  agent 
to  put  himself  into  a  position  wherein  his  duty  to  his 


.t  ?3ti ,  f>* 


§83.]  FOR  WHAT   PURPOSES   CREATED.  10 

principal  and  his  own  interesi  may  conflict,  or  wherein 
his  duty  to  one  principal  may  conflict  with  his  duty 
to  another  principal,  or  which  expose  him  to  tempta- 
tion to  violate  his  duty  to  his  principal; 

See  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  Cas.  Ag.  12; 
Atlee  v.  Fink,  75  Mo.  100,  42  Am.  Rep.  3S5,  Cas.  Ag.  14;  Byrd  v. 
Hughes,  84  111.  174,  25  Am.  Rep.  442,  Cas.  Ag.  23. 

to  procure  or  to  suppress  legislation  by  bringing  per- 
sonal influence  to  bear  upon  the  legislators; 

See  Mills  v.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535,  Cas.  Ag.  17; 
Spalding  v.  Ewing,  149  Pa.  St.  375,  24  Atl.  R.  219,  15  L.  R.  A.  727; 
Houlton  v.  Dunn,  60  Minn.  26,  61  N.  W.  898,  SO  L.  R.  A.  737;  County 
of  Colusa  v.  Welch,  122  Cal.  428,  55  Pac.  R.  243. 

to  procure  action  on  the  part  of  municipal  bodies  In- 
corrupt persuasion ; 

See  Hayward  v.  Nordberg  M'fg.  Co.,  85  Fed.  R.  4,  29  C.  C.  A.  438. 

to  procure  contracts  from  governments  and  heads  of 
governmental  departments  by  like  influences; 

See  Stanton  v.  Embrey,  98  U.  S.  548,  Cas.  Ag.  631;  Elkhart 
County  Lodge  v.  Crary,  98  Ind.  238,  49  Am.  Rep.  746,  Cas.  Ag.  18; 
Beal  v.  Polhemus,  67  Mich.  130;  Weed  v.  Black,  2  McArth.  (D.  C.) 
268,  29  Am.  Rep.  618;  Gorman  v.  United  States,  34  Ct.  pf  Ch.  237; 
Wasserman  v.  Sloss,  117  Cal.  425,  49  Pac.  R.  566,  59  Am.  St.  R.  209; 
Commonwealth  v.  Press  Co.,  156  Pa.  St.  516,  26  Atl.  R.  1035. 

to  procure  the  suppression  or  defeat  of  public  prosecu- 
tions by  other  than  the  open  and  legally  established 
methods  of  procedure; 

See  Weber  v.  Shay,  56  Ohio  St.  116,  46  N.  E.  377,  60  Am.  St.  R. 
743;  Kirkland  v.  Benjamin,  67  Ark.  480,  55  S.  W.  840. 

to  secure  appointment  to  public  or  private  office,  by 
personal  solicitation  or  influence; 

See  Edward  v.  Randle,  63  Ark.  318,  38  S.  W.  343,  36  L.  R.  A.  174; 
Basket  v.  Moss,  115  N.  C.  448,  20  S.  E.  733,  44  Am.  St.  R.  463; 
West  y.  Camden,  135  U.  S.  507,  34  L.  ed.  254;  Wilbur  v.  Stoepel,  82 
Mich.  344,  46  N.  W.  724,  21  Am.  St.  R.  568. 


20  FOR  WHAT  PURPOSES  CREATED.  [J  33 

to  procure  pardons  by  like  means; 

See  Deering  &  Co.  v.  Cunningham,  63  Kans.  174,  65  Pac.  R.  263, 
54  L.  R.  A.  410;  Moyer  v.  Cantieny,  41  Minn.  242,  42  N.  W.  1060. 

to  secure  or  suppress  evidence; 

See  Lyon  v.  Hussey,  82  Hun  15,  31  N.  Y.  S.  281;  Kennedy  v. 
Hodges,  97  Ga.  753,  25  S.  E.  493;  Quirk  v.  Muller,  14  Mont.  467,  36 
Pac.  R.  1077,  43  Am.  St.  R.  647,  25  L.  R.  A.  87;  Crisup  v.  Grosslight, 
79  Mich.  380,   44  N.  W.  621. 

to  deal  in  prohibited  articles  or  engage  in  forbidden 
transactions; 

See  Sullivan  v.  Horgan,  17  R.  I.  109.  20  Atl.  R.  232;  Helber  v. 
Schantz,  109  Mich.  669,  67  N.  W.  913;  Mexican  International  B'k'g 
Co.  v.  Lichtenstein,  10  Utah  338,  37  Pac.  R.  574. 

to  deceive  and  defraud  the  public; 

See  McDonnell  v.  Rigney,  108  Mich.  276,  66  N.  W.  52;  Merrill  v. 
Packer,  80  Iowa,  542,  45  N.  W.  1076;  Shipley  v.  Reasoner,  80  Iowa, 
548,  45  N.  W.  1077;  McNamara  v.  Gargett,  68  Mich.  454,  36  N.  W.  218. 

to  further  and  increase  litigation ; 

See  Peck  v.  Heurich,  167  U.  S.  624;  Alpers  v.  Hunt,  86  Cal.  78, 
24  Pac.  R.  846;  contra,  Vocke  v.  Peters,  58  111.  App.  338. 

to  do  acts  in  contravention  of  statutes; 

See  Irwin  r.  Curie,  56  N.  T.  App.  Div.  514,  67  N.  Y.  S.  380;  Dudley 
v.  Collier,  87  Ala.  431,  6  So.  R.  304,  13  Am.  St.  R.  55;  Parks  v.  Dold 
Packing  Co.,  6  Misc.  R.  570,  27  N.  Y.  S.  289;  Lowey  v.  Granite  Asso- 
ciation, 8  Misc.  R.  319,  28  N.  Y.  S.  560. 

to  procure  election  to  public  or  private  office  by  im- 
proper means; 

See  Roby  v.  Carter,  6  Tex.  Civ.  App.  295,  25  S.  W.  725 ;  Dansereau 
v.  St.  Louis,  18  Can.  S.  Ct.  R.  587;  Dickson  v.  Kittson,  75  Minn.  168, 
77  N.  W.  820,  74  Am.  St.  R.  447. 

to  endeavor  to  bribe  or  corrupt  the  servant  or  agent  ot 
another ; 

See  Woodstock  Iron  Co.  v.  Richmond  etc.  Co.,  129  U.  S.  643,  32 
L.  ed.  819;  Lum  v.  McEwen,  56  Minn.  278,  s.  c.  Lum  v.  Clark,  57  N. 
W.  662;  Boyd  v.  Cochrane,  18  Wash.  281,  51  Pac.  383. 


§5  33-34.]  FOR  WHAT  PURPOSES  CREATED.  21 

to  commit  crimes; 

See  Mexican  International  Banking  Co.  v.  Liechtenstein,  10  Utah, 
338,  37  Pac.  R.  574. 

to  procure  marriage  for  a  commission  or  other  com- 
pensation; 

See  Duval  v.  Wellinan,  124  N.  Y.  156,  26  N.  E.  343;  Morrison  v. 
Rogers,  115  Cal.  252,  46  Pac.  R.  1072;  Hellen  v.  Anderson,  83  111. 
App.  506. 

to  create  "corners"'  and  monopolies; 

See  Leonard  v.  Poole,  114  N.  Y.  371,  21  N.  E.  707,  11  Am.  St.  K. 
667,  4  L.  R.  A.  728;   Samuels  v.  Oliver,  130  111.  73,  22  N.  E.  499. 

to  engage  in  stock  gambling  transactions  or  unlawful 
dealings  in  other   commodities  or  merchandise;    or 

See  Kahn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203;  Wagner  v. 
Hildebrand.  187  Pa.  St.  136,  41  Atl.  R.  34;  Dows  v.  Glaspel,  4  N.  Dak. 
251,  60  N.  W.  60;  Embrey  v.  Jemison,  131  U.  S.  336,  33  L.  ed.  172; 
Cashman  v.  Root,  89  Cal.  373,  26  Pac.  R.  883,  12  L.  R.  A.  511,  23  Am. 
St.  R.  482. 

these,  and  all  others  of  like  character  or  tendency  the 
law  declares  void. 

See  Bowman  v.  Phillips,  41  Kans.  364,  21  Pac.  R.  230,  3  L.  R.  A. 
631;  Beebe  v.  Board  of  Supervisors,  64  Hun  377,  19  N.  Y.  S.  629; 
Brown  v.  First  National  Bank,  137  Ind.  655,  37  N.  E.  158.  21  L.  R. 
A.  206;  Wood  v.  Mancheser  Fire  Ins.  Co.,  30  Misc.  R.  230,  63  N.  Y. 
S.  427;  Railroad  Co.  v.  Morris,  10  Ohio  Cir.  Ct.  R.  502,  3  Oh.  Dec.  419. 

Study  the  following  cases,  and  be  able  to  state  how  they  illus- 
trate the  rule:  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  C 
on  Ag.  12;  Elkhart  County  Lodge  v.  Crary,  9S  Ind.  238,  49  Am.  Rep. 
746,  Cas.  on  Ag.  18;  Byrd  v.  Hughes,  S4  111.  174,  25  Am.  Rep.  4  i2. 
Cas.  on  Ag.  23;  Stanton  v.  Embrey,  93  U.  S.  548,  Cas.  on  Ag.  631; 
Mills  v.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535.  Cas.  Ag.  17;  Atlee  v. 
Fink,  75  Mo.  100,  42  Am.  Rep.  385,  Cas.  Ag.  14. 

§34.    Validity    as    between    principal    and 

agent. — But  to  make  these  contracts  void  as  between 
the  principal  and  the  agent,  it  is  necessary  that  the 
agent  shall  have  participated  in  the  unlawful  intent  of 


22  FOR  WHAT  PURPOSES   CREATED.  [§§  34-35. 

the  principal,  or  shall  knowingly  have  assisted  in  giv- 
ing it  effect, 

See  Irwin  v.  Williar,  110  U.  S.  at  p.  510. 

§35.    How  when  contract  illegal  in  part. — 

Where  contracts  of  this  nature  are  entire,  that  is,  where 
the  mutual  agreements  are  so  connected  and  mutually 
dependent  that  one  part  can  not  stand  without  the 
others,  the  whole  contract  will  be  rendered  void  by  the 
illegality;  but  if  the  contract  is  severable,  the  invalid 
part  may  be  rejected  and  the  residue  be  given  effect. 


S3  36  37  J         WHO   MAY  BE  PRINCIPAL  OR  AGENT. 


2* 


i  SG 

1. 


CHAPTER  III. 

WHO  MAY  BE  PRINCIPAL  OR  AGENT. 


In  general. 

Who    May   Be   Principal. 

37.  The  general  rule. 

38.  Rule    applies    to    corpora- 

tions and  partnerships. 

39.  Natural    or    legal    incapac- 

ity. 

40.  Insane   persons  as   princi- 
pals. 

41.  Infants  as  principals. 

42.  Married  women  as  princi- 

pals. 

2.    Who  May  Be  the  Agent. 

43.  Less    competence    required 

in  agent  than  principal. 

44.  Infant   as   agent. 

45.  How  authorized. 

46.  Married  woman  as  agent. 

47.  As  agent  for  her  hus- 
band. 


52. 


53. 


§  48.  Husband  as  agent  for  hl» 
wife. 
40.  Corporations  as  agents. 

50.  Partnerships  as  agents. 

51.  Incapacity      arising     from 

adverse   interest. 

3.     Joint  Principals. 

Agent  may  represent  sev- 
eral joint  principals. 

Parties,  co-tenants,  etc., 
as  principals. 

54.  Clubs,     societies,    etc.,    as 

principals. 
4.    Joint  Agents. 

55.  Several  agents  may  jointly 

represent  the  same  prin- 
cipal. 

56.  If  the  power  13  joint  and 

several. 

57.  But   where    the    agency    is 

one  created  by  law. 


§36. 


In  general. — Attention  will  next  be  given  to 
th"  general  question,  Who  may  be  principal  or  agent? 
And  as  a  not  inappropriate  part  of  the  same  gene 
subject,  the  questions  which  arise  where  several  per- 
sons are  jointly  to  be  the  principals  or  the  agents,  will 
be  here  considered. 


1.     'Who  may  he  Principal. 

§  37.    The  general  rule. — It  is  the  general  rule  that 
every  person  who  is  competent  to  act  in  his  own  ru 
and  in  his  own  behalf  may  act  by  agent.    We  have  seen 
also  that  as  a  general  rule  a  person  may  do  by  agent 


QQ  3 


21  WHO  MAY  BE  PRINCIPAL  OR  AGENT.       [§§  37-3S. 

whatever  he  may  do  in  person.  The  reverse  of  this  is 
also  true  in  general,  viz. : — that  a  person  who  is  incom- 
petent to  act  in  his  own  right  and  in  his  own  behalf 
cannot  act  by  agent ;  neither  can  one  do  by  agent  what 
he  cannot  do  in  person. 

§  38.  Rule  applies  to  corporations  and  partner- 
ships.— This  rule  applies  to  collections  of  persons  as 
well  as  to  single  individuals.  Hence  corporations  may, 
and,  from  their  nature,  must  usually  act  by  agents; 
and  the  existence  of  the  agency  and  the  effect  of  the 
agent's  acts  are  subject  to  the  same  rules  which  apply 
to  individuals.  Thus  it  is  said  in  a  recent  case,  "It  is 
well  settled  that  a  corporation  may  contract  and  be 
contracted  wdth  through  an  agent  whose  authority 
may  be  implied  from  facts  and  circumstances  showing 
recognition  or  ratification  by  the  corporation.  Indeed, 
it  seems  that  the  same  presumptions  are  applicable  in 
this  respect  to  corporations  as  to  natural  persons." 

See  Moyer  v.  East  Shore  Terminal  Co.  (1894)  41  S.  Car.  300,  19 
S.  E.  Rep.  651,  44  Am.  St.  Rep.  709. 

So  partnerships  may,  unless  restricted,  perform  by 
agent  the  acts  which  are  within  the  scope  of  the  part- 
nership business. 

See  St.  Andrews  Bay  Land  Co.  v.  Mitchell,  4  Fla.  192,  54  Am.  Dec. 
340,  Cas.  Ag.  26;  Lucas  v.  Bank  of  Darien,  2  Stew.  (Ala.)  280,  Cas. 
Ag.  27;  Clark  v.  Slate  Valley  R.  Co.  (1890),  136  Pa.  408,  20  Atl.  Rep. 
562,  10  L.  R.  A.  238. 

The  rule  applies  to  limited  partnerships  as  well  as 
to  ordinary  partnerships. 

See  Park  Bros.  &  Co.  v.  Kelly  Axe  Mfg.  Co.  (1892),  49  Fed.  Rep. 
618,  6  U.  S.  App.  26,  1  C.  C.  A.  395. 

§39.  Natural  or  legal  incapacity. — Incapacity  to 
be  a  principal  may  be  either  natural  or  legal.     It  is 


<J 


/ 


§§  39-41.7  WHO   MAY   BE   PRINCIPAL   OR   AGENT.  25 

natural  where  it  inheres  in  the  very  nature,  character 
or  situation  of  the  person,  as  in  the  case  of  insane  per- 
sons, very  young  infants,  and  the  like.  It  is  legal  where 
it  results  from  the  operation  of  some  arbitrary  rule  of 
law,  as  in  the  case  of  married  women  at  the  common 
law,  or  of  the  infant  who  has  nearly  but  not  quite 
reached  the  age  which  may  be  fixed  for  his  majority. 

§40.  Insane  persons  as  principals. — Insane  per- 
sons and  other  persons  who,  from  unsoundness  of  mind, 
arc  incompetent  to  make  contracts,  are  incompetent  to 
act  by  agent. 

See  Plaster  v.  RIgney  (1899),  97  Fed.  Rep.  12,  38  C.  C.  A.  25. 

But  if  the  incapacity  was  not  known  to  the  other 
party,  who  has  acted  in  good  faith  and  taken  no  ad- 
vantage of  it,  an  executed  contract  will  not  be  set  aside 
if  the  other  party  can  not  be  restored  to  his  original 
condition. 

See  Drew  v.  Nunn   (1879),  4  Q.  B.  Div.  661. 

§  41.  Infants  as  principals. — The  rule  has  been  laid 
down,  especially  in  the  older  cases,  that  an  infant  can 
not  appoint  an  agent,  and  that  any  such  appointment 
is  void.  The  better  rule  is  that  the  arjpointment  is 
simply  voidable,  like  the  infant's  ordinary  contracts, 
and  that  as  to  those  matters,  like  the  purchase  of  neces- 
saries, and  the  like,  concerning  which  the  infant  could 
act  in  person,  he  may  act  by  agent. 

See  Coursclle  v.  We3'erhauser,  69  Minn.  328,  72  N.  W.  Rep.  697; 
Patterson  v.  Lippincott,  47  N.  J.  L.  457,  54  Am.  Rep.  178,  Cas.  on 
Ag.  507;  Askey  v.  Williams  (18S9),  74  Tex.  291.  11  S.  W.  Rep.  1101, 
5  L.  R.  A.  176;  Beliveau  v.  Amoskeag  Co.  (1895),  68  N.  H.  225,  40 
Atl.  Rep.  734,  44  L.  R.  A.  167;  Trueblood  v.  Trueblood,  S  Ind.  195, 
65  Am.  Dec.  756,  Cases  on  Agency  29;  Armltage  v.  Widoe,  "J  M' 
124.  The  last  two  cases  show  the  older  rule;  the  first  one,  the  mod- 
ern rule. 

Even  under  the  older  rule,  an  infant  might,  under  many  clrcum- 


2G  WHO  MAY  BE  PRINCIPAL  OR  AGENT.        [§§41-42. 

stances,  employ  a  servant  (Chappie  v.  Cooper,  13  M.  &  W. 252)  though 
he  could  not  appoint  an  agent.  Service  may  often  be  a  necessary 
for  which  the  infant  may  bind  himself,  but  the  appointment  of 
an  agent  has  in  view  the  creation  of  contractual  obligations,  and  the 
contractual  capacity  of  the  infant  is  limited. 

§  42.  Married  women  as  principals. — Unmarried 
men,  at  common  law,  might  act  by  agent,  but  mar- 
ried women  were  incompetent  to  act  in  their  own  be- 
half, and  could  not  therefore  act  by  agent.  In  most 
Suites  this  incapacity  has  been  largely  removed  by 
statutes  which  usually  provide  that  a  married  woman 
may  acquire  and  hold  property  as  her  separate  estate 
and  may  make  contracts  respecting  it,  as  though  she 
were  unmarried ;  and  a  married  woman  may  now  act  by 
agent  in  respect  to  those  matters  concerning  which  the 
statutes  have  made  her  competent  to  act  in  person.  It 
was  said  in  a  recent  case,  concerning  one  of  these  stat- 
utes, "these  provisions  have  brushed  away  many  of  the 
disabilities  of  the  wife  under  the  common  law;  have 
recognized  her  individual  existence,  and  conferred  upon 
her  distinct  rights  and  powers  respecting  contracts,  the 
carrying  on  of  business,  the  owning,  controlling  and 
disposing  of  property,  equal  to  those  held  and  enjoyed 
by  her  husband.  She  is  clothed  with,  power  to  manage 
her  own  affairs,  and  certainly  has  power  to  appoint 
an  agent  or  attorney  to  do  that  which  she  is  capable 
of  doing  in  person." 

See  Munger  v.  Baldridge  (1889),  41  Kans.  23ti,  21  Pac.  Rep.  159, 
13  Am.  St.  Rep.  273. 

As  will  be  seen  in  a  later  section  (§  48)  where  a 
married  woman  may  act  by  agent,  she  may  appoint  her 
husband  as  such  agent. 


*» 


In  dealing  with  the  question  of  the  married  woman's  capacity  to 
act  by  agent,  the  starting  point  must  be  her  common  law  incapacity, 
which  was  practically  complete.  To  a  greater  or  less  extent,  this 
incapacity  has  been  removed  by  statute,  but  the  statutes  are  not 


IS  42-42.]  WHO   MAY   BE   PRINCIPAL   OR   AGENT.  27 

uniform,  nor  do  they  usually  completely  remove  the  common  law 
disabilities.  So  far  as  the  latter  have  not  been  so  removed,  they  still 
operate,  and  it  is  necessary,  therefore,  in  each  case  to  see  how  that 
particular  case  is  affected  by  the  statute. 

Compare  Weisbrod  v.  Railway  Co.,  18  Wis.  35,  86  Am.  Dec.  743, 
Cas.  Ag.  31,  with  Nash  v.  Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38,  Cas. 
Ag.  33. 

2.     Who  may  be  the  Agent. 

§  43.  Less  competence  required  in  agent  than  in 
principal.  — Inasmuch  as  it  is  tbe  principal  who  is  to 
be  brought  into  contractual  relations  with  third  per- 
sons, it  is  obvious  that  the  question  of  his  capacity  is 
more  important  than  that  of  the  agent.  The  agent  acts 
in  a  representative  capacity  and  exercises  a  derivative 
authority.  A  less  degree  of  competency  is  therefore  re- 
quired in  the  agent  than  in  the  principal,  and  it  is  said 
that  any  person  may  be  an  agent  except  a  lunatic,  im- 
becile or  child  of  tender  years.  Hence  infants,  married 
women,  slaves  and  aliens  have  been  held  competent  to 
act  as  agents. 

See  Lyon  v.  Kent,  45  Ala.  656,  Cas.  on  Ag.  37. 

It  is,  of  course,  not  meant  that  an  infant,  for  example,  is  alwayrj 
an  appropriate  agent:  there  are  many  occasions  where  much  judg- 
ment, discretion  or  special  skill  may  be  requisite,  which  an  infant 
would  not  ordinarily  possess,  but  that  is  a  consideration  which  ap- 
peals rather  to  the  principal's  wisdom  in  selecting  his  representa- 
tive than  to  any  standard  of  ability  which  the  law  may  require. 

The  most  serious  difficulty  in  this  connection  is  to  reconcile  the 
statement  that  an  infant,  slave  or  married  woman  may  be  an  agent 
with  the  declaration  previously  made  that  the  relation  of  agency — 
the  relation  between  the  principal  and  his  agent — is  a  contractual 
one.  It  is  asked,  how  that  can  be  a  contractual  relation  which  may 
be  entered  into  by  one  not  having  contractual  capacity.  This  ap- 
parent difficulty  has  seemed  to  some  so  serious  that  they  have  been 
led  to  ascribe  some  other  character  to  agency  and  to  describe  it 
not  as  a  contractual  relation  but  as  a  status  or  "office."  Whether 
agency  may  properly  be  defined  as  Matus  or  not  depends,  of  course, 
upon  what  is  meant  by  status, — a  matter  upon  which  the  persons 
who  use  that  term  are  by  no  means  agreed.  (See  Holland's  Juris- 
prudence, 9th  ed.,  p.  133.)  It  must  suffice  here  to  say  that  the  char- 
acteristics of  status  generally  insisted  upon  are  not  to  b«  found  is 


28  WHO  MAY  BE  PRINCIPAL  OR  AGENT.        [§§43-45. 

agency.  To  define  agency  as  an  office  presents  the  same  difficulties: 
it  certainly  is  not  a  public  office,  and  to  call  it  a  private  office  is  to 
raise  questions  as  difficult  as  those  which  this  definition  was  sug- 
gested to  solve. 

The  true  view  doubtless  is  to  regard  the  relation  as  a  contractual 
one,  and  to  treat  these  as  cases  of  imperfect  relation  as  is  done  in 
many  other  fields — the  general  contracts  of  the  infant,  for  example, 
which  are  merely  voidable  and  not  void,  and  then  voidable  by  the 
infant  only  and  not  by  third  persons. 

§  44.  Infant  as  agent. — Though  an  infant  may  be 
an  agent,  the  relation  is  an  imperfect  one.  The  infant 
agent  may  bind  his  principal,  but  neither  the  principal 
nor  third  persons  with  whom  the  agent  deals  can  ac- 
quire the  same  rights  against  the  infant  agent  which 
they  might  have  if  he  were  an  adult, 

In  the  case  of  Cordross's  Settlement,  (1878)  7  Ch.  Div.  728,  Sir 
George  Jessel,  M.  R.,  said,  "I  will  state  that  in  my  opinion  it  is  good 
law  that  an  infant  can  exercise  a  power  even  though  it  be  coupled 
with  an  interest,  where  an  intention  appears  that  it  should  be  exer- 
cisable during  minority." 

But  while  the  infant  agent  can  thus  doubtless  effectually  execute 
the  authority  conferred  upon  him  in  such  sense  that  neither  the 
principal  nor  the  other  party  can  disregard  the  contract  merely  be- 
cause the  agent  was  an  infant,  it  is  also  doubtless  true  that  the 
principal  could  not  enforce  any  contractual  obligation  against  the 
infant  agent  nor  could  the  third  person  with  whom  the  agent  dealt 
enforce  against  the  agent  such  a  contractual  liability,  for  example, 
as  that  which  results  when  an  adult  agent  assumes  to  make  a  con- 
tract without  authority.     (See  post  §        .) 

§  45.    How  authorized.  — The    infant    may    be 

the  agent  of  his  parent  or  of  strangers,  but  in  either 
case  it  must  be  by  virtue  of  some  actual  authorization. 
Even  when  he  is  to  act  for  his  parent,  it  must  be  by 
virtue  of  the  parent's  authority,  for,  except  in  some 
cases  respecting  necessaries,  a  child  has  no  implied 
authority,  merely  because  he  is  the  child,  to  bind  his 
parent  as  his  agent,  as,  for  example,  in  buying  or  sell- 
ing goods,  making  contracts  or  loaning  the  parent's 
property.      Such   an   authority   may,   however,   be  ex* 


§§45-47.]         WHO  MAY  BE  PRINCIPAL  OR  AGENT.  29 

pressly  given  or  it  may  be  presumed  from  the  parent's 
conduct,  as,  for  example,  by  his  acquiescence  in  it  when 
brought  to  his  attention. 

See  Johnson  v.  Stone,  40  N.  H.  1ST,  77  Am.  Dec.  706,  Cas.  Ag.  78; 
Bennett  vs  Gillett,  3  Minn.  423,  74  Am.  Dec.  774,  Cas.  Ag.  79;  Hall 
v.  Harper,  17  111.  82;  Swartwout  v.  Evans,  37  111.  442. 

§  4(>.  Married  woman  as  agent. — A  married  woman 
might  at  common  law  be  the  agent  of  third  persons, 
even  in  their  dealings  with  her  husband.  It  was,  how- 
ever, as  in  the  case  of  the  infant  agent,  an  imperfect 
relation,  because  the  married  woman  at  common  law 
had  no  capacity  to  enter  into  contract  relations.  Un- 
der the  modern  "Married  Women's  Acts,"  her  capacity 
to  act  as  agent  is  usually  made  much  greater. 

§  47.    As  agent  for  her  husband. — Both  at  the 

common  law  and  under  the  modern  statutes,  the  mar- 
ried woman  is  competent  to  be  the  agent  of  her  hus- 
band. Her  authority  as  her  husband's  agent  is  of  two 
kinds: 

1.  That  created  by  law,  even  against  the  husband's 
consent,  to  buy  necessaries  on  his  credit  when  he  lias 
neglected  to  supply  her.  This  is  a  matter,  however, 
which  does  not  concern  us  here,  but  belongs  to  the  law 
of  husband  and  wife. 

See  Benjamin  v.  Dockham,  134  Mass.  418,  Cas.  on  Ag.  71. 

2.  That  which  arises  from  his  actual  authorization, 
either  express  or  implied,  as  in  the  case  of  his  other 
agents. 

The  wife  has  no  general  authority  as  her  husband's 
agent  merely  because  she  is  his  wife.  Her  husband  may 
give  her  such  authority,  but  it  must  be  conferred  either 
expressly  or  impliedly,  as  in  the  ease  of  his  other 
agents. 

Sec  Benjamin  v.  Benjamin,  15  Conn.  347,  3D  Am.  Dec.  384,  Cas. 
Ag.  72;  Cox  v.  Hoffman,  4  Dev.  &  Bat.  (N.  C.)  ISO,  Cas.  Ag.  39; 
Weisbrod  v.  Railway  Co.,  18  Wis.  35,  86  Am.  Doc.  743,  Cas.  Ag.  III. 


30  WHO   MAY  BE   PRINCIPAL   OR   AGENT.        [§§  48-50. 

§  48.    Husband  as  agent  for  his  wife. — Where   a 

married  woman  is  competent  to  act  by  agent  (see  ante 

§  42),  her  husband  may  be  appointed  as  the  agent.  "If 

she  appoints  her  husband  as  her  agent  in  such  a  matter, 

and  in  making  the  appointment  acts  of  her  own  free 

will  and  without  coercion  from  him,"  said  the  court 

in  Massachusetts,  "we  see  no  reason  for  regarding  her 

as  incapable  of  authorizing  any  act  to  be  done  by  him 

in  her  name,  and  on  her  behalf,  or  for  shielding  her 

from  responsibility.     It  must  be  held  that  whatever  is 

done  within  the  scope  of  the  agency  is  done  by  her 

authority." 

See  Shane  v.  Lyons  (1898)  172  Mass.  199,  51  N.  E.  976,  70  Am. 
St.  Rep.  261. 

Her  husband,  however,  has  no  authority  as  her  agent 
merely  because  he  is  her  husband,  but  his  authority 
must  be  conferred  as  in  the  case  of  any  other  agent. 
And  it  is  said  that  even  clearer  evidence  of  her  appoint- 
ment ought  to  be  required,  when  he  assumes  to  act  as 
her  agent,  than  would  be  required  if  a  stranger  were 
the  agent. 

See  McLaren  v.  Hall,  26  Iowa,  297,  Cas.  Ag.  77;  Rowell  v.  Klein, 
44  Ind.  290;  Rankin  v.  West,  25  Mich.  195;  Rust-Owen  Lumber  Co. 
v.  Holt,  60  Neb.  80,  82  N.  W.  Rep.  112,  83  Am.  St.  Rep.  512. 

§  49.  Corporations  as  agents. — A  corporation  may 
act  as  agent  either  for  individuals,  partnerships,  or 
other  corporations,  if  the  act  is  within  the  scope  of  its 
corporaTe  powers  and  not  forbidden.  Corporations  are 
often  organized  for  this  express  purpose,  as  in  the  case 
of  trust  companies,  and  the  like. 

See  Killingsworth  v.  Trust  Co.,  18  Ore.,  351,  17  Am.  St.  Rep.  787, 
Cas.  on  Ag.  40;  McWilliams  v.  Detroit  Mills,  31  Mich.  275. 

§  50.  Partnerships  as  agents. — The  same  rule  ap- 
plies to  partnerships.  They  may  act  as  agent  within 
the  scope  of  their  partnership  powers,  or  may  be  ex- 


§f  50-51.J         WHO   MAY   BE   PRINCIPAL   OR   AGENT.  31 

pressly  organized  for  that  purpose.  Authority  con- 
ferred upon  a  firm  is  supposed  to  be  conferred  upon 
each  member  of  it,  unless  the  contrary  is  expressed, 
and  therefore  the  authority  may  be  exercised  by  any 
one  of  the  partners. 

See  Deakin  v.  Underwood,  37  Minn.  98.  5  Am.  St.  Rep.  827,  Cas. 
Ag.  68. 

§51.  Incapacity  arising  from  adverse  interest  — 
Incapacity  to  act  as  agent  in  certain  eases  arises  from 
adverse  interest.  The  law  does  not  permit  a  person  to 
assume  to  act  as  agent  where  he  already  has  such  an 
interest  in  the  same  matter  as  may  prevent  his  acting 
fairly  toward  his  principal.  Thus  the  agent  of  one 
party  cannot,  without  the  intelligent  consent  of  both 
principals,  undertake  to  act  in  the  same  transaction  as 
the  agent  of  the  other  party.  Neither  can  a  person, 
without  the  full  and  intelligent  consent  of  the  other 
party,  undertake  to  be  both  a  party  to  a  transaction 
and  the  agent  of  the  other  party. 

This  subject  will  be  more  fully  considered  hereafter. 

See  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  Cas.  Ag.  12; 
Bell  v.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep.  528,  Cas.  Ag.  538; 
Byrd  v.  Hughes,  84  111.  174.  25  Am.  Rep.  442,  Cas.  Ag.  23;  Davis  v. 
Hamlin,  108  111.  39,  48  Am.  Rep.  541,  Cas.  Ag.  461. 

It  is  not  necessary  in  this  class  of  cases  that  the  interest  shall 
be  such  as  will  or  must  prevent  his  acting  fairly  towards  his  prin- 
cipal. Here,  as  before,  the  lav;  judges  of  the  whole  class  by  the 
tendency  of  any  particular  specimen  in  that  class.  It  does  not  make 
any  difference  in  this  particular  case  whether  the  agent  might  have 
been  able  to  sink  entirely  his  own  interest  and  act  with  the  utmost 
fidelity.  It  makes  no  difference  that  he  is  acting  and  has  acted  with 
the  utmost  fidelity. 

See  Carr  v.  National  Bank  &  Loan  Co.  167  N.  Y.  375,  60  N.  E. 
Rep.  649,  82  Am.  St.  Rep.  725. 

If  the  principal  at  the  time  he  employs  the  agent  knows  that  the 
latter  has  this  interest,  there  Is  no  reason  why  he  cannot  employ  him. 
If  he  is  willing  to  trust  him  in  view  of  the  facts  he  may  do  so.  The 
case  spoken  of  Is  where  the  interest  is  not  disclosed.  Without  that 
full  and   intelligent  consent  on  the  part  of  the  principal  the  law 


32  WHO  MAY  BE  PRINCIPAL  OR  AGENT.        [§§  51-R3. 

absolutely  forbids  the  agent  from  assuming  to  act  where  he  haa  an 
adverse  interest. 

See  Wildberger  v.  Hartford  Fire  Ins.  Co.,  72  Miss.  338,  17  !3o. 
Rep.  282,  48  Am.  St.  Rep.  558;  Ramspeck  v.  Pattillo,  104  Ga.  772, 
30  S.  E.  Rep.  962,  69  Am.  St.  Rep.  197. 


3.     Joint  Principals. 

§  52.  Agent  may  represent  several  joint  princi- 
pals. — An  agent  may  be  appointed  to  represent  a  num- 
ber of  joint  principals.  The  interest  which  the  asso- 
ciates have  may  be  that  of  partners,  or  of  joint-tenants, 
or  tenants  in  common  of  property,  or  merely  that  of 
persons  who  have  united  to  form  a  club,  society  or  asso- 
ciation in  order  to  accomplish  some  social,  political, 
religious  or  other  similar  purpose.  What  their  interest 
is,  becomes  material  in  determining  the  extent  of  their 
powers  and  liabilities  as  joint  principals. 

Where  a  number  of  co-tenants  execute  several  and  separate  pow- 
ers of  attorney  to  the  same  agent  to  dispose  of  the  several  interest 
of  each,  the  agent  will  have  no  authority  to  bind  them  all  jointly. 
Harris  v.  Johnston  (1893),  54  Minn.  177,  55  N.  W.  Rep.  970,  40  Am. 
St.  Rep.  312.  So  where  two  principals  unite  in  giving  a  joint  power 
to  bind  both  jointly,  there  will  be  no  authority  to  bind  one  only, 
Gilbert  v.  How  (1890),  45  Minn.  121,  47  N.  W.  Rep.  643,  22  Am.  St. 
Rep.  724,  Cas.  Ag.  380. 

§  53.  Partners,  co-tenants,  etc.,  as  principals. — 
In  the  case  of  a  partnership,  each  partner  has  usually 
the  power  to  appoint  an  agent  whose  acts,  in  reference 
to  the  partnership  affairs,  will  bind  all  of  the  part- 
ners. But  in  the  case  of  joint  tenants,  tenants  in  com- 
mon, and  other  similar  relations,  one  party  is  not,  from 
the  mere  fact  of  the  relation,  impliedly  authorized  to 
act  for  all,  and  an  agent  appointed  by  one  will  bind 
that  one  only  and  not  all,  unless  all  authorized  his 
appointment. 

See  Mussey  v.  Holt,  24  N.  H.  248,  55  Am.  Dec.  234;  Tuttle  v.  Camp- 
bell, 74  Mich.  652,  16  Am.  St.  Rep.  652;  Morrison  v.  Clark,  89  Me. 
103,  56  Am.  St.  Rep.  395. 


55  54-55.1         WHO   MAY  BE  PRINCIPAL  OR  AGENT.  '■>>'■>> 

§51.  Clubs,  societies,  etc.,  a3  principals. — Clubs, 
societies,  and  unincorporated  associations  are  not  part- 
nerships, and  no  power  in  one  member  to  bind  the 
others  will  be  implied  from  the  mere  fact  of  member- 
ship. A  person,  therefore,  who  assumes  to  act  as  agent 
of  such  a  body  can  bind  those  only  who  have  in  so 
way,  previously  authorized  his  appointment,  expressly 
or  impliedly,  or  have  subsequently  ratified  it 

As  in  other  cases,  no  particular  method  of  conferring 
the  authority  is  necessary,  unless  made  so  by  some  i 
press  rule  of  the  association.  Such  an  appointment 
may  be  authorized  by  the  rules  or  regulations  of  the 
association  to  which  the  member  assents  on  joining,  or 
it  may  be  made  by  those  who  vote  for  it  at  a  meeting, 
or  it  may  be  ratified  by  the  members  who  subse- 
quently take  the  benefit  of  the  acts  with  knowledge  of 
the  facts. 

See  Ash  v.  Guie,  97  Penn.  St.  493,  39  Am.  Rep.  818,  Cas.  Ag.  45; 
Davison  v.  Holden,  55  Conn.  103,  3  Am.  St.  Rep.  40,  Cas.  Ag.  47; 
Lewis  v.  Tilton,  64  Iowa,  220,  52  Am.  Rep.  436,  Cas.  Ag.  510;  Bennet 
v.  Lathrop,  71  Conn.  613,  42  Atl.  634,  71  Am.  St.  Rep.  222. 

Of  course,  to  bind  any  one  as  principal  in  these  cases,  it  must 
appear  that  dealings  upon  credit  were  contemplated,  for  if  it  be 
evident  that  the  authority  went  no  further  than  to  pledge  funds  pro- 
vided and  supposed  to  be  sufficient,  no  personal  liability  would 
attach.  McCabe  v.  Goodfellow  (1892),  133  N.  Y.  89,  30  N.  E.  Rep. 
728,   17  L.  R.  A.  204. 

i**""*  4.     Joint  Agents. 

§  55.  Several  agents  may  jointly  represent  the 
same  principal. — There  may  also  be  a  number  of 
agents  jointly  representing  the  same  principal.  Where 
they  are  appointed  by  a  private  principal,  the  law  pre- 
sumes that  the  principal  relied  upon  their  joint  judg- 
ment and  discretion,  and  they  must  therefore  all  act 
together  in  the  execution  of  their  authority,  and  a  less 
number  than  the  whole  can  not  execute  it,  unless  there 


34  WHO  MAY   BE  PRINCIPAL  OR  AGENT.        [§§55-57. 

be  some  provision  in  the  instrument  appointing  them 
or  something  in  the  circumstances,  such  as  waiver,  ac- 
quiescence and  the  like,  which  indicates  the  consent  of 
the  principal  that  less  than  the  whole  may  act. 

See  Hawley  v.  Keeler,  53  N.  Y.  114,  Cas.  on  Ag.  50. 

§  56.    If  the  power  is  joint  and  several,   then 

all  or  one  only  must  act  and  not  an  intermediate  num- 
ber. If  a  partnership  is  the  agent,  the  authority  may, 
as  has  been  seen,  be  executed  by  any  one  of  the  part- 
ners, in  the  absence  of  stipulations  to  the  contrary. 

The  death  or  disability  of  one  of  two  or  more  joint 
agents  will  terminate  the  authority  unless  it  is  coupled 
with  an  interest  in  the  survivors. 

See  Deakin  v.  Underwood,  37  Minn.  98,  5  Am.  St.  Rep.  827,  Cas. 
Ag.  68. 

§  57.    But  where  the  agency  is  one  created 

by  law,  or  is  public  in  its  nature,  the  rule  is  different. 
In  such  cases  all  of  the  agents  or  officers  must  be  pres- 
ent to  deliberate,  or  must  have  notice  and  an  oppor- 
tunity to  be  present  and  deliberate  with  the  others,  but 
a  majority  of  the  whole  number,  if  present,  may  then 
lawfully  meet.  A  majority  of  this  meeting  may  then 
exercise  the  power. 

This  rule  applies  to  the  directors  of  corporations. 
Thus  after  due  notice,  a  majority  constitute  a  quorum, 
and  a  majority  of  that  quorum  may  act. 

See  First  Nat.  Bank  v.  Mt.  Tabor,  52  Vt.  87,  36  Am.  Rep.  734,  Cas. 
on  Ag.  52;  McNeil  v.  Chamber  of  Commerce,  154  Mass.  277,  Cas. 
Ag.  63. 


5§  G8  60] 


APPOINTMENT    OF    AGENTS. 


35 


ER  Q, 


CHAPTER 

OF    THE    APPOINTMENT    OF    AGENTS    AND    THE    EVIDENCE 

THEREOF. 


5  58.  In  general. 

1.     How  the  Agent  May 
Be  Appointed. 

59.  Usually,    only    by    act    of 

principal. 

60.  The  method  to  be  pursued. 

61.  1.  Authority  to  execute  in- 

struments under  seal. 

62.  How  when  instrument 

executed    in    presence    of 


Need  not  be  express. 

67. 

Doctrine    of    estoppel 

applied. 

CS. 

General   rule. 

69. 

Limitations. 

2. 

Evidence  of  the  Appoint- 

ment. 

70. 

Authority  not  to  be  proved 

by  agent's  admissions. 

71. 

But     agent     may     be 

called  as  a  witness. 

What  constitutes  the  best 
evidence. 

How  question  deter- 
mined. 


principal. 

63.  How  corporation  may 

appoint. 

64.  2.    Authority    required    by 

statute  to  be  in  writing. 

65.  In    other    cases,    authority 

may  be  conferred  by  pa- 
rol. 

§  58.  In  general. — The  questions  next  to  be  consid- 
ered will  be,  1,  How  the  agent  may  be  appointed,  and 
2,  By  *what  evidence  the  fact  of  his  appointment  may 
be  established. 

.f  1.     How  the   [gent  may  be  Appointed. 

§  59.  Usually,  only  by  act  of  principal. — Except 
in  those  cases  in  which  the  law  creates  the  authoritv, 
it  is  the  invariable  rule,  that  an  agent  can  only  be  ap- 
pointed at  the  will  and  by  the  act  of  the  principal, 
though  that  will  may  find  expression  in  many  different 
ways. 

See  Pole  v.  Leask,  33  L.  J.  Rep.  Eq.  155,  Agency  Cases.  81. 

§60.  The  method  to  be  pursued. — The  law  usu- 
ally prescribes  no  particular  method  of  conferring  the 


36  APPOINTMENT    OF    AGENTS.  [§§  60-S1 . 

authority.  The  material  question  is  as  to  the  fact  of 
the  appointment  rather  than  as  to  the  method  adopted.. 
There  are,  however,  two  classes  of  cases — one  arising 
under  the  rules  of  the  common  law  and  one  under 
statutes — in  which  the  authority  must  be  conferred  in 
a  particular  way,  and  they  are :  1.  Cases  wherein  an 
instrument  under  seal  is  to  be  executed ;  and,  2,  Cases 
wherein  some  statute,  usually  designed  to  prevent 
fraud  or  perjury,  expressly  requires  the  authority  to 
be  conferred  by  writing.  These  two  classes  of  cases 
will  be  considered  first. 

§  61.  1.  Authority  to  execute  instruments  under 
sealf  — it  was  the  settled  rule  at  common  law — and  this 
rule  still  generally  prevails — that  authority  to  execute 
an  instrument  necessarily  under  seal  could  be  con- 
ferred only  by  a  written  power  under  seal. 

See  Humphreys  v.  Finch,  97  N.  Car.  303,  1  S.  E.  Rep.  870,  2  Am. 
St.  Rep.  293. 

So  authority  to  fill  blanks  in  deeds  or  other  sealed  in- 
struments can  generally  be  conferred  only  by  sealed 
instrument,  though  there  are  cases  wherein  a  principal, 
who  has  confided  to  an  agent  a  bond  or  deed  containing 
blanks  to  be  filled  and  then  delivered,  will  be  held 
bound  to  innocent  parties,  although  the  agent  has  filled 
the  blanks  in  an  unauthorized  manner. 

See  Phelps  v.  Sullivan,  140  Mass.  36,  54  Am.  Rep.  442,  Cas.  Ag. 
101;  White  v.  Duggan,  140  Mass.  18,  54  Am.  Rep.  437;  Humphreys  v. 
Finch,  supra;  Cribben  v.  Deal,  21  Oreg.  211,  28  Am.  St.  Rep.  746. 

But  much  less  significance  is  now  attached  to  seals 
than  formerly,  and  there  is  a  marked  tendency  in  many 
States  either  to  abolish  the  old  distinctions  by  statute, 
or  to  disregard  them  as  no  longer  suited  to  the  times. 

And  even  at  common  law,  if  the  instrument  to  be  exe- 
cuted was  unnecessarily  under  seal,  and  the  authority 

x 


§§  61-63.]  APPOINTMENT    OF    AGENTS.  37 

was  sufficient  for  an  unsealed  instrument,  the  superflu- 
ous seal  would  be  disregarded  and  the  authority  held 
sufficient. 

See  Heath  v.  Nutter,  CO  Me.  378,  Agency  Cases  91;  Long  v.  Hart- 
well,  34  N.  J.  L.  116,  Cas.  Ag.  92;  Nichols  v.  Haines,  98  Fed.  Rep. 
692,  39  C.  C.  A.  235.  Compare,  in  passing,  Thomas  r.  Joslin,  30 
Minn.  388,  Cas.  Ag.  427;  Drury  v.  Foster.  2  Wall.  24,  Cas.  Ag.  120. 

§  62.     How    when   instrument  executed    in 

presence  of  principal. — So  even  though  the  instrument 
to  be  executed  were  necessarily  under  seal,  yet  if  the 
instrument  were  executed  in  the  presence  of  the  prin- 
cipal and  by  his  express  direction  mere  verbal  author- 
ity was  sufficient.     This  rule  still  prevails. 

See  Gardner  v.  Gardner,  5  Cush.  483,  52  Am.  Dec.  741,  Cas.  Ag. 
100;  Bigler  v.  Baker,  (1894)  40  Neb.  325,  58  N.  W.  Rep.  1026,  24 
L.  R.  A.  255. 

The  reason  given  for  this  rule  is  that  "if  the  grantor's  name  is 
written  by  the  hand  of  another,  in  his  presence  and  by  his  direc- 
tion, it  is  his  act,  and  the  signature,  in  point  of  principle,  is  as 
actually  his  as  though  he  had  performed  the  physical  act  of  making 
it."    Mutual  Benefit  L.  Ins.  Co.  v.  Brown,  30  N.  J.  Eq.  193. 

§  G3.    Kcw  corporation  may  appoint. — It  was 

also  the  rule  of  the  common  law  that  a  corporation 
could  contract  only  by  deed  under  its  corporate  seal, 
and  that  its  appointment  of  an  agent  could  be  made 
only  in  the  same  manner,  but  this  rule  has  been  quite 
generally  abandoned,  and  a  corporation  may  now  ap- 
point agents  in  substantially  the  same  manner  that  an 
individual  may  employ  them. 

"A  great  deal  of  the  difficulty,"  it  is  said  in  one  case,  "originally 
felt  in  holding  corporations  liable  for  the  acts  of  their  agents  within 
the  scope  of  their  authority,  arose  from  the  supposition  that  it  was 
necessary  that  their  appointment  should  be  under  the  seal  of  their 
principals.  The  decisions,  both  in  England  and  America,  have  satis- 
factorily disposed  of  this  technical  doubt,  and  it  is  now  clearly  the 
law,  particularly  with  regard  to  what  are  called  trading  corpora- 
tions, that  no  such  evidence  of  authority  is  required.     A  private 

corporation  is  liable  for  the  acts  of  its  agents  within  the  scope  of 
/ 


7 


38  APPOINTMENT    OF    AGENTS.  [§§  63-64. 

their  authority,  in  the  same  way,  and  it  would  appear  in  the  same 
form,  as  any  individual  person  is."  Pennsylvania  Railroad  Co.  v. 
Vandiver  (1862),  42  Pa.  St.  365. 

See  Burrill  v.  Bank,  2  Mete.  (Mass.)  163,  35  Am.  Dec.  395;  Noble- 
boro  v.  Clark,  68  Me.  87,  28  Am.  Rep.  22;  Alabama,  etc.,  R.  Co.  v. 
South,  etc.,  R.  Co.,  84  Ala.  570,  5  Am.  St.  Rep.  401;  Williams  v. 
Fresno  Canal  Co.,  96  Cal.  14,  31  Am.  St.  Rep.  172;  Scofield  v.  Parlln 
&  Orendorff  Co.,  61  Fed.  Rep.  804,  18  U.  S.  App.  692,  10  C.  C.  A.  83. 

§  64.  2.  Authority  required  by  statute  to  be  in 
writing. — In  very  many  of  the  States,  by  statute  (the 
.statute  of  frauds  or  its  equivalent)  an  agent  to  sell, 
mortgage  or  lease  lands  or  any  interest  therein  (other, 
usually,  than  leases  for  not  more  than  one  year),  can 
be  authorized  only  by  an  instrument  in  writing. 

Thus  the  statute  in  Michigan  (Comp.  L.  1897,  §§9509,  9511)  de- 
clares that  "No  estate  or  interest  in  lands,  other  than  leases  for  a 
term  not  exceeding  one  year,  nor  any  trust  or  power  over  or  con- 
cerning lands,  or  in  any  manner  relating  thereto,  shall  hereafter  be 
created,  granted,  assigned,  surrendered  or  declared,  unless  by  act 
or  operation  of  lav;,  or  by  deed  or  conveyance  in  writing,  sub- 
scribed by  the  party  creating,  granting,  assigning,  surrendering  or 
declaring  the  same,  or  by  some  person  thereunto  by  him  lawfully 
authorized  by  writing."  And  "Every  contract  for  the  leasing  for  a 
longer  period  than  one  year,  or  for  the  sale  of  any  lands,  or  any  in- 
terest in  lands,  shall  be  void,  unless  the  contract,  or  seme  note  or 
memorandum  thereof,  be  in  writing,  and  signed  by  the  party  by 
whom  the  lease  or  sale  is  to  be  made,  or  by  some  person  thereunto 
by  him  lawfully  authorized  by  writing."  Statutes  substantially  sim- 
ilar are  found  in  Alabama,  California,  Colorado,  Illinois,  Ohio,  and 
other  States. 

Not  all  of  the  States,  however,  have  such  statutes.  Thus,  Wis- 
consin, for  example,  while  it  has  a  statute  identical  with  the  first 
sei  ion  quoted  above  from  Michigan,  omits  the  words  "by  writing" 
at  the  close  of  the  second  one.  Indiana  and  Iowa  do  the  same,  and 
there  are  various  distinctions  in  other  States  which  it  is  not  prac- 
ticable to  reproduce  here.  The  statute  in  each  State  must  be  con- 
sulted whenever  this  general  question  arises.  See,  for  example, 
Lccg  t.  Hartwell,  34  N.  J.  L.  116,  Agency  Cases,  92;  Malone  v.  Mc- 
Cullough,  15  Colo.  460;  Kozei  v.  Dearlove,  144  111.  23,  36  Am.  St. 
Rep.  416;  White  v.  Breen,  106  Ala.  159,  19  So.  Rep.  59,  32  L.  R.  A. 
127;  Alabama,  etc.,  R.  Co.  v.  South,  etc.,  R.  Co.,  84  Ala.  570,  5  Am. 
St  Rep.  401. 


§§  64-67.]  APPOINTMENT    OF    AGENTS.  .".0 

The  policy  of  the  law  may  extend  this  rule  to  other 
cases.  Thus,  in  Kentucky  it  is  enacted  thai  "No  per- 
son shall  be  bound  as  the  surety  of  another  by  the  art 
of  an  agent  unless  the  authority  of  the  agent  is  in  writ- 
ing, signed  by  the  principal." 

See  Kentucky  Statutes,  1899,  §482;  Simpson  v.  Commonwealth, 
89  Ky.  412,  12  S.  W.  Rep.  630. 

§  65.  In  other  cases,  authority  may  be  conferred 
by  parol. — Except  in  these  cases,  of  instruments  ond<  r 
seal,  and  statutes  expressly  requiring  written  author- 
ity, it  is  the  general  rule  that  authority  for  the  doing  of 
any  act  lawful  to  be  done,  including  the  execution  of  all 
written  instruments  other  than  those  mentioned  above, 
may  be  conferred  without  writing. 

See  Worrall  v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330. 

There  seems  to  be  an  impression,  easily  acquired,  but  with  diffi- 
culty removed,  that,  because  authority  for  the  execution  of  instru- 
ments under  seal  must  be  conferred  by  an  instrument  under  seal, 
authority  for  the  execution  of  instruments  in  writing  must  be  con- 
ferred by  writing.  This,  however,  is  not  true.  Except  in  the  cases 
already  referred  to,  authority  for  the  execution  of  written  instru- 
ments may  be  conferred  without  writing.  Authority  for  the  execu- 
tion of  negotiable  instruments  is  no  exception,  though  such  an 
authority  is  not  easily  implied.  (See  Jackson  v.  National  Bank. 
Agency  Cases,  415;  New  York  Iron  Mine  v.  National  Bank,  Agency 
Cases,  423.) 

§G6.    Need   not    be  express. — The  authority, 

moreover,  need  not  be  expressly  conferred.  In  tie1 
great  majority  of  the  cases  it  is  informally  conferred, 
or  is  presumed  from  the  acts  and  conduct  of  the  prin- 
cipal. 

§  67. Doctrine  of  estoppel  applied. — The  doc- 
trine of  estoppel  is  constantly  applied,  and  the  prin- 
cipal will  not  be  permitted  to  deny  that  which  by  his 
words  or  conduct  he  has  asserted,  if  such  denial  would 

prejudice  an  innocent  third  person  who  has  reasonably 
relied  upon  such  words  or  conduct. 


40  APPOINTMENT    OF    AGENTS.  [§§67-69. 

See  Breckeuridge  v.  Lewis,  84  Me.  349,  Ag.  Cas.  103;  Phelps  v. 
Sullivan,  140  Mass.  36,  54  Am.  Rep.  442,  Cas.  Ag.  101. 

Estoppel,  as  here  used,  has  been  defined  to  be:  "An  impediment 
or  bar  by  which  a  man  is  precluded  from  alleging  or  denying  a  fact, 
in  consequence  of  his  own  previous  act.  allegations  or  denial  to  the 
contrary."    Jacob's  Law  Diet. 

§  68.     General  rule. — It  may  therefore  be  stated 

as  a  general  rule  that  whenever  a  person  has  held  out 
another  as  his  agent  authorized  to  act  for  him  in  a 
given  capacity;  or  has  knowingly  and  without  dissent 
permitted  such  other  to  act  as  his  agent  in  that  ca- 
pacity; or  where  his  habits  and  course  of  dealing  have 
been  such  as  to  reasonably  warrant  the  presumption 
that  such  other  was  his  agent  authorized  to  act  in  that 
capacity;  whether  it  be  in  a  single  transaction  or  in  a 
series  of  transactions — his  authority  to  such  other  to  so 
;■<•{  for  him  in  that  capacity  will  be  conclusively  pre- 
sumed, so  far  as  it  may  be  necessary  to  protect  the 
rights  of  third  persons  who  have  relied  thereon  in  good 
faith  and  in  the  exercise  of  reasonable  prudencej  and 
he  will  not  be  permitted  to  deny  that  such  other  was 
his  agent  authorized  to  dp  the  act  he  assumed  to  do, 
provided  that  such  act  was  within  the  real  or  apparent 
scope  of  the  presumed  authority. 

See  Savings  Society  v.  Savings  Bank,  36  Penn.  St.  498,  78  Am. 
Dec.  390,  Cas.  Ag.  371;  Johnson  v.  Hurley,  115  Mo.  513,  Cas.  Ag.  84. 
See  also  Pursley  v.  Morrison,  7  Ind.  356,  63  Am.  Dec.  424;  Hooe  v. 
Oxley,  1  Wash.  (Va.)  19,  1  Am.  Dec.  425;  Tier  v.  Lampson,  35  Vt. 
179,  82  Am.  Dec.  634;  Hubbard  v.  Tenbrook  (1889).  124  Pa.  St.  291, 
16  Atl.  Rep.  817,  2  L.  R.  A.  823,  Cas.  Ag.  367;  Union  Stock  Yard  Co. 
v.  Mallory,  157  III.  554,  41  N.  E.  Rep.  888,  48  Am.  St.  Rep.  341. 

§  69.    -Limitations. — But     authority     will     not 

arise  from  mere  presumption.  _It  must  he  based  on 
facts,  for  which  the  principal  is  responsible,  and  wiW 
not  arise  from  any  mere  argument  as  to  the  conven- 
ience, utility  or  propriety  of  its  existence. 

The  facts,  moreover,  from  which  it  is  implied  must 
be  given  their  ordinary  and  natural  effect,  and  where 


§2  69-71.]  APPOINTMENT    OP    AGENTS.  11 

the  authority  is  inferred  from  the  adoption  of  arts  of 
a  certain  kind,  its  scope  will  be  limited  to  the  perform- 
ance  of  a<is  of  the  same  kind. 

See  Bickford  v.  Menier,  107  N.  Y.  490,  Cas.  Ag.  93;  Graves  v. 
Horton,  38  Minn.  66,  Cas.  Ag.  82. 

2.     Evidence  of  the  Appoint  men  I. 

§  70.  Authority  not  to  be  proved  by  agent's  ad- 
missions.— The  authority  of  the  agent  must  in  all  cases 
he  traced  to  the  principal,  and  must  be  established  by 
evidence  of  his  acts  or  statements.  As  against  the  prin- 
cipal, therefore,  the  agent's  admissions  or  declarations 
(as  distinguished  from  his  testimony,  as  a  witness  i;i 
court),  are  not  admissible  for  the  purpose  of  establish- 
ing, enlarging  or  renewing  the  agent's  authority;  nor 
can  his  authority  be  established  by  showing  that  he 
acted  as  agent,  assumed  to  be  agent  or  was  generally 
reputed  to  be  agent.  The  agent's  acts  and  statements 
cannot  be  made  use  of  against  the  principal  until  the 
fact  of  his  agency  has  first  been  shown  by  other  evi- 
dence. 

See  Hatch  v.  Squires,  11  Mich.  185,  Cas.  Ag.  106;  Mitchum  v. 
Dunlap,  98  Mo.  418;  Kornemann  v.  Monaghan,  24  Mich.  36;  Graven 
v.  Korton,  38  Minn.  66,  Cas.  Ag.  82;  Kane  v.  Barstow,  42  Kan.  465, 
16  Am.  St.  Rep.  490;  Mullanphy  Savings  Bank  v.  Schott,  135  111. 
655,  26  N.  E.  Rep.  640,  25  Am.  St.  Rep.  401;  Pepper  v.  Cairns,  133 
Pa.  St.  114,  19  Atl.  Rep.  336,  19  Am.  St.  Rep.  625;  Baltimore,  etc.. 
Relief  Ass'n  v.  Post,  122  Pa.  St.  579,  9  Am.  St.  Rep.  147. 

When  it  is  said  that  the  agent's  statements,  admissions  and  dec- 
larations cannot  be  made  use  of  until  the  fact  of  his  agency  has 
been  shown  by  other  evidence,  it  is  not  meant  that  there  must  first 
be  a  separate  verdict  found  establishing  that  fact;  what  is  meant 
is,  that  there  must  first  be  some  competent  testimony  offered  tending 
to  prove  that  fact. 

§  71. But  agent  may  be  called  as  a  witness. 

— If  the  agent's  evidence  as  to  his  authority  is  desired, 
he  must  be  called  as  a  witness;   his  testimony  as  to  the 


42  APPOINTMENT    OF    AGENTS.  [§§71-73. 

nature  and  extent  of  his  authority,  where  it  rests  in 
parol,  being  as  competent  as  that  of  any  other  witness. 

It  is  necessary  to  distinguish  between  what  the  alleged  agent 
may  admit,  represent  or  declare,  out  of  court,  when  he  is  not  under 
oath  or  subject  to  cross-examination,  and  his  testimony  as  to  the 
facts  concerning  his  authority  when  he  is  called  as  a  witness. 

See  Howe  Machine  Co.  v.  Clark,  15  Kan.,  492,  Cas.  Ag.  107; 
Thayer  v.  Meeker,  86  111.  470. 

His  testimony,  moreover,  "cannot  be  restricted  to  the 
more  words  used  by  the  principal,  but  is  admissible 
generally  on  the  whole  subject." 

Zze  Lawall  v.  Groman.  ISO  Pa.  532,  37  Atl.  Rep.  98,  57  Am.  St. 
Rep.  662. 

The  agent's  testimony,  further,  like  that  of  any  other 

witness,   is   not   necessarily   conclusive.      It  has  such 

weight  as  its  credibility  entitles  it  to  receive.    Thus  it 

might  be  found  from  other  evidence  that  he  was  agent, 

though  he  testified  that  he  was  not,  or  that  he  was  the 

agent  of  one  party,   though   he  testified  that  he  was 

agent  of  another. 

See  State  v.  Bristol  Savings  Bank,  108  Ala.  3,  18  So.  Rep.  533, 
54  Am.  St.  Rep.  141. 

§  72.    What  constitutes  the  best  evidence. — 

^Yhere  the  authority  is  conferred  by  written  instru- 
ment, the  writing  is  the  best  evidence  of  the  existence 
and  nature  and  extent  of  the  authority,  and  must  be 
produced,  or  its  absence  accounted  for,  in  any  case  in 
which  the  question  of  the  existence  of  the  authority  is 
directly  involved;  but  where  the  question  is  only  col- 
laterally involved,  that  is,  where  it  arises  incidentally 
in  some  other  controversy,  parol  evidence  may  be  ad- 
mitted, even  though  the  authority  was  in  writing. 

See  Neal  v.  Patten,  40  Ga.  363;  Bridge  Co.  v.  Geisse,  38  N.  J.  L.  39. 

§  73.    How  question  determined.  — Where  the 

authority  is  in  writing  and  the  writing  is  produced,  the 


|7X.]  APPOINTMENT    OF    AGENTS.  43 

question  whether  aii  agency  has  been  created  by  it,  and 
if  so,  what  is  its  scope  and  effect,  are  questions  of  law 
for  the  court. 

So  if  there  be  no  writing  but  the  facts  are  not  dis- 
puted, the  question  whether  under  the  undisputed  f. 
an  agency  exists,  and  if  so,  what  is  its  nature  and  ex- 
tent, is  likewise  for  the  court. 

But  where  the  authority  is  not  in  writing  and  the 
facts  are  in  dispute,  it  is  for  the  jury  to  determine,  un- 
der proper  instructions  from  the  court,  not  only  the 
existence  of  the  agency,  but  also  its  nature  and  effect. 

See  Savings  Society  v.  Savings  Bank,  36  Penn.  498,  78  Ata.  Dec. 
390,  Cas.  Ag.  371;  Railroad  Co.  v.  Henlein,  52  Ala.  606;  Wilicox  v. 
Hines,  100  Tenn.  524,  45  S.  W.  Rep.  781,  66  Am.  St.  Rep.  701;  See- 
horn  v.  Hall,  130  Mo.  257,  32  S.  W.  Rep.  643,  51  Am.  St.  Rep.  56.'. 


44 


OF  AUTHORITY  BY  RATIFICATION. 


[§  74. 


CHAPTER  V. 


OF  AUTHORITY  BY  RATIFICATION. 


§  74.  How  question  arises. 
1.    What  is  Ratification. 

75.  Ratification  defined. 

2.    What  Acts  May  Be  Ratified. 

76.  In  general,  any  act  which 

might     previously     have 
been  authorized. 

77.  Not    void     or     illegal 

acts. 

78.  Forgery. 

3.    Who  May  Ratify. 

79.  In     general,     any     person 

who   might  authorize. 

80.  State,  corporation,  etc. 

81.  Infants  —  Married  women. 

82.  Agent. 

4.  Conditions  of  Ratification. 

83.  What  conditions  must  ex- 

ist. 

5.  What    Amounts    to    a   Rati- 

fication. 


84.  General  rule. 

85.  Ratification  by  instrument 

under  seal. 

86.  Ratification    by     authority 

subsequently  conferred. 

87.  Ratification  by  conduct. 

88.  By  accepting  benefits. 

89.  By  bringing  suit. 

90-91.  By  acquiescence. 

,     The    Effect    of    Ratification. 

92.  In  general. 

93.  Revocability. 

94.  Effect    as    between  princi- 

pal and  agent. 

95.  Effect  as  to  rights  of  third 

party  against  principal. 

96.  Effect  as  to  rights  of  prin- 
cipal against  third  party. 

97.  Effect   between   agent   and 

other  party. 

98.  In  tort. 


§  74.  How  question  arises. — The  matters  thus  far 
dealt  with  have  been  those  which  relate  to  the  creation 
of  authority  before  an  act  is  done.  Cases,  however,  not 
infrequently  arise  in  which  a  person  ha,s  done  an  act 
as  agent  for  another  which  proves  to  be  unauthorized 
either  because  the  authority  was  not  broad  enough  to 
include  it,  or  because  though  it  once  existed  it  had  ex- 
pired, or  because,  perhaps,  there  was  no  semblance  at 
any  time  of  authority  and  the  act  was  based  upon  a 
mere  gratuitous  assumption  of  authority.  In  all  of 
these  cases,  of  course,  the  supposed  principal   is  not 


5§  74-76.]  OF  AUTHORITY  BY  RATIFICATION.  45 

bound  and  may  repudiate  the  act  when  brought  to  his 
attention. 

Suppose,  however,  on  the  other  hand,  that,  when  the 
act  is  brought  to  his  attention,  he  approves  of  it,  and 
would  be  glad  to  have  it  regarded  as  an  act  done  on  his 
account;  or  suppose  that  when  the  act  La  brought  to 
his  attention,  he  is  so  indifferent  towards  it  that  he 
simply  does  nothing,  leaving  the  matter  in  such  con- 
dition  that,  an  infcrPTW  of  approval  is  just  as  legiti- 
mate  as  the  inference  of  disapproval,  or,  perhaps,  is 
stronger.  What  is  now  the  legal  situation?  May  an 
unauthorized  act  be  subsequently  either  evprpssly  or 
impliedly  approved;  and  if  so  what  are  the  nature  and 
effect  of  such  approval? 

To  the  first  question,  the  answer  of  the  law  is  cer- 
tain :  .There  may  be  a  subsequent  approval  of  unau- 
thorized acts.  The  law  terms  that  subsequent 
approval  Ratification.  As  to  the  second  question, 
AVhat  is  the  effect  of  such  an  approval  or  ratification, 
and  in  what  cases  will  it  be  operative?  it  is  the  purpose 
of  the  present  chapter  to  supply  the  answer. 

1.     What  is  Ratification. 

§  75.      Ratification  defined.  — Ratification     is,    the 

adoption  and  affirmance  by  one  person  of  an  act  which 
another,  without  authority,  has  assumed  to  do  as  his 
agent. 


See  McCracken  v.  San  Francisco,  16  Cal.  591,  Cas.  Ag.  109;  Zott- 
ruan  v.  San  Francisco,  20  Cal.  96,  81  Am.  Dec.  96. 

2.      What   Art*  may  he   Ifatifirf. 

§  76.     In  general,  any  act  which  might  previously 
have  been  authorized. — As  a  general,  rule,  a  Person 

may  ratify  the  previous  unauthorized  doing  by  another 
in,  his  behalf,  of  any  act  which  he  might  then  and  cay 


46  OF  AUTHORITY  BY  RATIFICATION.  [§§  76-79. 

still  lawfully  do  himself,  and  which  he  might  then  and 
can  still  lawfully  delegate  to  such  other  to  be  done. 

The  act  so  ratified  may  be  either  the  making  of  a 
contract,  or,  within  the  limits  referred  to  in  the  follow- 
ing section,  the  commission  of  a  tort. 

§  77. Not    void  or  illegal  acts. — Ratification 

can  not  render  valid  acts  which  were  void  when  done, 
or  acts  which  were  then  so  far  illegal  in  themselves 
that  they  could  not  then  be  lawfully  authorized;  but 
an  act  which  is  a  trespass,  singly  because  it  was  not 
authorized,  may  be  ratified  by  the  subsequent  approval 
of  the  person  whose  authority  was  needed;  and  so  a 
person  may  assume  liability  by  the  adoption  of  an  act 
which  another  has  done  in  his  behalf  and  as  his  agent, 
and  which  proves  to  be  a  trespass  or  other  tort  because, 
while  it  might  lawfully  be  done  under  some  circum- 
stances, it  wras  not  lawfully  done  in  the  case  in 
question. 

See  Brewer  v.  Sparrow,  7  Barn.  &  Cres.  310;  Wilson  v.  Tumman, 
6  Man.  &  Gr.  236;  Armitage  v.  Widoe,  36  Mich.  124. 

§  78.  Forgery. — Whether  a  forgery  can  be  rati- 
fied has  been  much  disputed,  but  the  weight  of 
authority  is  to  the  effect  that  responsibility  for  the  act 
may  be  assumed  by  ratification,  though  not  so  as  to 
affect  the  forger's  liability  for  his  crime. 

See  Greenfield  Bank  v.  Crafts,  4  Allen  447,  Cas.  Ag.  110;  Henry 
v.  Heeb,  114  Ind.  275,  5  Am.  St.  Rep.  613,  Cas.  Ag.  115.  See  also 
Montgomery  v.  Crossthwait,  90  Ala.  553,  8  So.  Rep.  498,  12  L.  R. 
A.  140. 

3.     Who  may  Ratify. 

§  79.     In  general,  any  person  who  might  authorize. 

— As  a  general  rule  any  person  who  was  competent  to 
do  an  act   when  it  was  done  and  who  is  still  compe- 


§§79-82.]  OP-  AUTHORITY  BY  RATIFICATION.  47 

tent  to  do  it,  may  ratify  its  unauthorized  doing  b\ 
another  as  his  agent. 

$80.    State,  corporation,  etc. — Thus  the  State, 

municipal  and  private  corporations,  partnerships,  and 
partners,  may  ratify  what  it  or  they  could  and  can  still 
authorize.  And  of  course,  e  cuitccrsu,  neither  can  do 
by  ratification  what  it  would  be  powerless  to  authorize 
directly. 

See  State  v.  Torinus,  26  Minn.  1,  37  Am.  Rep.  395;  Forbes  v. 
Hagman,  76  Va.  168,  Agency  Cases,  122;  School  District  v.  Insurance 
Co.,  62  Me.  330,  Caa.  Ag.  194;  Melledge  v.  Iron  Co.,  5  Cush.  (Mass.) 
158.  51  Am.  Dec.  59;  North  Point,  etc.,  Co.  v.  Utah  Canal  Co.,  16 
Utah  246,  40  L.  R.  A.  851;  Union  School  Furniture  Co.  v.  School 
District,  50  Kans.  727,  20  L.  R.  A.  136;  Commercial  Electric  L.  &  P. 
Co.  v.  Tacoma,  20  Wash.  288,  72  Am.  St.  Rep.  103. 

§  81.    Infants— Married  women.— It^has  been 

said  that  an  infant  can  not  ratify,  but  the  true  rule 
is  that  both  infants,  and  married  women  under  the  mod- 
ern statutes,  may  ratify  such  acts  and,  of  course,  surh 
only  as  they  are  competent  to  authorize. 

See  Armitage  v.  Widoe,  36  Mich.  124;  Drury  v.  Foster,  2  Wall,  24, 
Agency  Cases,  120;  Rowell  v.  Klein,  44  Ind.  290;  McLaren  v.  Hall, 
26  Iowa,  297,  Cas.  Ag.  77;  Reed  v.  Morton,  24  Neb.  760,  40  N.  W. 
Rep.  282,  1  L.  R.  A.  736;  MacFarland  v.  Heim,  127  Mo.  327,  29  S.  W. 
Rep.  1030,  48  Am.  St.  Rep.  629. 


§82.     Agent.— An  agent  cannot  ratify  his  own 

act^  nor  caflj™  "' +™  jflflt  TPTlfa  ratitT„tte  apt  nfl"" 
fellow  agent:  but  pne  afient  may  ratify  ffrg  fl^ftf  *"• 

other  agent  of  the  same  uriminal,  where  the  agent   who 

ratifies  has  himself  general  authority  to  do  the  act  rat- 

ified. 


See  Ironwood  Store  Co.  v.  Harrison,  75  Mich.  197,  Cas.  Ag.  124. 

The  same  rule  is  expressed  in  a  different  way  when  It  is  saii 
"An  agent  can  in  some  cases  ratify  an  act  done  by  a  sub-agent  by 
adopting  it  as  his  own,  but  such  ratification  will  not  bind  the  prin- 
cipal unless  it  is  an  act  which  was  within  the  agent's  authority  to 
do."    Wright  on  Principal  and  Agent  (2d  ed.),  54. 


48  OF  AUTHORITY  BY  RATIFICATION.  [§  8S. 

4.     Conditions  of  Ratification-. 

§  S3.  What  conditions  must  exist. — In  order  to 
effect  a  ratification,  the  following  conditions  must 
exist : 

a.  The  person  ratifying  must  have  the  present  abil- 
ity to  do  the  act  himself  or  to  authorize  it  to  be  done. 

b.  The  person  for  whom  the  act  was  done  must  have 
been  identified  or  capable  of  being  identified.  In  other 
words,  the  person  who  did  the  act  must  have  acted  for 
the  particular  person  ratifying  or,  if  he  did  net  know 
who  the  particular  person  was,  then  for  persons  of  his 
description.  * 

See  Foster  v.  Bates,  12  M.  &  W.  225,  Agency  Cases,  127. 

c.  The  act  must  have  been  done,  by  the  person  act- 
ing, as  agent  and  not  on  his  own  account.  That  is,  the 
person  who  did  the  act  must  at  the  time  not  only  have 
intended  to  act  on  behalf  of  the  person  ratifying,  but 
it  seems  also  to  be  necessary  that  he  should  then  have 
professed  to  act  for  a  principal,  though  it  is  not  neces- 
sary that  he  should  have  disclosed  who  the  principal 
was. 

See  the  very  late  case  of  Keighley  v.  Durant  [1901]  App.  Cas. 
240,  overruling  Durant  v.  Roberts  [1900],  1  Q.  B.  629;  Mitchell  v. 
Minnesota  Fire  Ass'n,  48  Minn.  278,  51  N.  W.  Rep.  608;  Ferris  v. 
Snow,  —  Mich.  — ,  90  N.  W.  Rep.  850,  wherein  it  is  held  that  it  is 
necessary  that  he  should  have  professed  to  act  as  agent.  It  seems, 
moreover,  to  be  sufficient  that  he  professed  to  act  as  agent,  though 
he  had  a  fraudulent  purpose  to  really  take  the  benefit  on  his  own 
account.  In  re  Tiedeman  [1899],  2  Q.  B.  Div.  66.  See  also  Ham- 
lin v.  Sears,  82  N.  Y.  327,  Agency  Cases,  136. 

On  the  other  hand,  in  Hayward  v.  Langmaid  [1902],  —  Mass.  — , 
63  N.  E.  Rep.  912,  it  is  held  not  to  be  necessary  that  he  should  have 
been  understood  to  De  dn  agent  by  the  person  with  whom  he  dealt. 

d.  The  person  ratifying  must  have  been  in  existence 
at  the  time  the  act  was  done. 

This  question   arises  more  frequently  in   the  case  of  contracts 


§83.]  OF  AUTHORITY  BY  RATIFICATION.  10 

made  or  acts  done  by  the  promoters  of  a  proposed  corporation  than 
in  any  other  class  of  cases.  The  question  is,  may  the  corporation 
when  organized  ratify  these  acts  done  or  contracts  made  before  it 
had  any  existence?  There  is  real  difficulty  in  saying  that  there  may 
be  rati;! ration  by  a  body  which  had  no  existence  and  therefore  no 
power  to  do  or  authorize  the  act  when  done.  Some  courts,  realizing 
the  difficulty,  have  held  that  there  may  be  adoption  but  not.  ratifi- 
cation. One  difference  in  result  is  that  in  the  case  of  adoption  the 
contract  is  not  deemed  to  be  made  until  the  date  of  the  adoption, 
while  in  case  of  ratification  the  contract  is  deemed  to  be  made  from 
the  beginning.  Some  courts  seem  to  regard  it  merely  as  a  difference 
in  names. 

See  McArthur  v.  Times  Printing  Co.,  48  Minn.  319,  Agency  Cases, 
128;  Bell's  Gap  R.  R.  Co.  v.  Christy,  79  Penn.  St.  54,  Agency  Cases, 
131;  Schreyer  v.  Turner  Flouring  Co.,  29  Oreg.  1,  43  Pac.  Rep.  719. 

e.     The  person  alleged  to  have  ratified  must,  at  the 

time  of  the  alleged  ratification,  have  either  had   full 

knowledge  of  all  of  the  material  facts  relating  to  the 

art   ratified    or    he    must    have   deliberately    assumed 

responsibility  for  the  act,  having  all  the  knowledge  of 

the  facts  which  he  cared  to  have.     Knowledge  of  the 

material  facts  is  essential,  but  knowledge  of  the  legal 

effect  of  those  facts  is  not  essential. 

See  Combs  v.  Scott,  12  Allen  (Mass.)  493,  Cas.  Ag.  146;  Scott  v. 
Railroad  Co.,  86  N.  Y.  200,  Agency  Cases,  148;  Wheeler  v.  Sleigh 
Co.,  39  Fed.  Rep.  347,  Cas.  Ag.  138;  Thacher  v.  Pray,  113  Mass.  291, 
Cas.  Ag.  204;  Wheeler  v.  McGuire,  86  Ala.  398,  5  So.  Rep.  190,  2 
L.  R.  A.  808;  Cram  v.  Sickel,  51  Neb.  828,  71  N.  W.  Rep.  724,  66  Am. 
St.  Rep.  478;  American  Exchange  Bank  v.  Loretta  Mining  Co.,  165 
111.  103,  46  N.-E.  Rep.  202,  56  Am.  St  Rep.  233;  Bierman  v.  City 
Mills,  151  N.  Y.  4S2,  15  N.  E.  Rep.  856,  56  Am.  St.  Rep.  635;  Brown  v. 
Wright,  58  Ark.  20,  22  S.  W.  Rep.  1022,  21  L.  R.  A.  467. 

/.  The  principal  cannot  ratify  the  act  so  far  as  it  is 
favorable  to  him,  and  reject  it  as  to  the  residue;  but  he 
musi  ratify  all  or  none.  If  he  takes  the  benefits  he 
mast  also  assume  the  burdens.  But  where  the  principal 
has  authorized  the  doing  of  a  certain  act,  he  does  not 
by  accepting  the  benefits  of  that  act  assume  responsi- 
bility for  an  additional  unauthorized  act  of  whose 
performance  be  was  ignorant 
i  —J 


50  OF  AUTHORITY  BY  RATIFICATION.  [§§  83-84. 

See  Eberts  v.  Selover,  44  Mich.  519,  38  Am.  Rep.  278,  Cas.  Ag. 
150:  Wheeler  v.  Sleigh  Co.,  39  Fed.  Rep.  347,  Cas.  Ag.  13S;  Baldwin 
v.  Burrows,  47  N.  Y.  199,  Cas.  Ag.  196;  Smith  v.  Tracy,  36  N.  Y. 
79,  Cas.  Ag.  154;  Roberts  v.  Rumley,  58  Iowa,  301,  Cas.  Ag.  143; 
Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  St.  398,  22  Atl.  Rep. 
667,  27  Am.  St.  Rep.  638;  Eastman  v.  Relief  Ass'n,  65  N.  H.  176,  18 
Atl.  745,  23  Am.  St.  Rep.  29;  Daniels  v.  Brodie,  54  Ark.  216,  15  S.  W. 
Rep.  467,  11  L.  R.  A.  81;  Busch  v.  Wilcox,  82  Mich.  336,  47  N.  W. 
Rep.  328,  21  Am.  St.  Rep.  563. 

g.  The  facts  alleged  to  show  the  ratification  must 
be  such,  and  there  must  be  such  reliance  upon  them, 
that  the  party  relying  upon  them  will  be  prejudiced  if 
the  ratification  is  not  established. 

See  Doughaday  v.  Crowell,  11  N.  J.  Eq.  201. 

/;.  The  ratification  can  not  be  made  to  so  operate  as 
to  cut  off  the  intervening  rights  of  third  persons  who 
have  acted  in  good  faith  and  without  notice  of  the  acts 
sought  to  be  ratified. 

See  Cook  v.  Tullis,  18  Wall.  332,  Agency  Cases,  160. 

i.  The  party  alleging  that  ratification  has  taken 
place  must  establish  it  by  a  preponderance  of  the  evi- 
dence. 

See  Reese  v.  Medlock,  27  Tex.  120,  84  Am.  Dec.  611. 

No  new  consideration  is  necessary.  The  original  con- 
sideration suffices. 

See  Montgomery  v.  Crossthwait,  90  Ala.  553,  8  So.  Rep.  498,  12 
L.  R.  A.  140. 

5.     What  Amounts  to  a  Ratification. 

§  84.  General  rule.— Ratification  may  be  either  ex- 
press or  implied.  There  are  cases  in  which  it  must  be 
express  or  formal.  It  is  a  general  rule  that  the  act  of 
ratification  must  be  of  the  same  nature  as  that  which 
would  be  required  to  confer  authority  to  do  the  ratified 
act  in  the  first  instance.     Thus  if  authjonty^ujoto:  seal 


85  84-87.]  OF  AUTHORITY  BY  RATIFICATION.  51 

would  have  been  required,  ratification  by  an  instrument 
under  seal  is  accessary ;  if  written  authority  vvas  requi- 
site, ratification  by  writing  is  neccs sary. 

See  Hawkins  v.  McGroarty,  110  Mo.  516,  Cas.  Ag.   L67;     Ko: 
Dearlove,  114  111.  23,  32  N.  E.  Rep.  542,  30  Am.  St.  Rop.  H6;  Worrall 
v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330;  Zottman  v.  Sau  Francisco.  20 
Cal.  96,  81  Am.  Dec.  96. 

§  85.    Ratification  by  instrument  under  seal. 

— The  tendency,  however,  is  strong  to  abolish  the  rule 
which  requires  ratification  under  seal. 

See  Mclntyre  v.  Park,  11  Gray  (Mass.)  102,  71  Am.  Dec.  690,  Cas. 
Ag.  170. 

And  here,  as  in  other  eases,  if  the  instrument  to  be 
ratified  was  unnecessarily  under  seal,  the  ratification 
may  be  made  without  seal. 

See  Adams  v.  Power,  52  Miss.  828;  Worrall  v.  Munn,  supra;  Zott 
man  v.  San  Francisco,  supra. 

§  80.  Ratification  by  authority  subsequently  con- 
ferred.—Ratification  may  be  effected  by  subsequently 
conferring  authority  to  do  the  act  to  be  ratified. 

See  Rice  v.  McLarren,  42  Me.  157,  Cas.  Ag.  190. 

§  87.  Ratification  by  conduct. — Inasmuch  as  au- 
thority for  the  doing  of  most  acts  may  be  conferred  by 
parol,  the  ratification  of  most  acts  may  be  eff<  cted  by 
parol.  This  is  the  rule  wherever  some  technical 
requirement  like  that  of  writing  or  sealing  does  not 
intervene.  In  the  great  majority  of  cases,  ratification 
is  inferred  from  conduct,  and  this  is  often  done  where 
the  party  had  no  express  intention  to  ratify  or  even  in- 
tended not  to  ratify.  The  principle  of  estoppel  applies 
here  and  where  a  party  by  his  words  or  conduct  has  led 
another  to  believe  that  tluk  act  was  done  by  his  author- 
ity.  he  will  not  afterward  be  permitted  to  deny  it  to  the 


52  OF  AUTHORITY  BY  RATIFICATION.  [§§  87-89. 

,  ;  ejudice  of  the  other  who  has  in  good  faith  relied 

'ii  it. 


See  ante  §§  G7,  68;  Dixon  v.  Bristol  Sav.  Bank,  102  Ga.  461,  31  S. 
E.  Rep.  96,  66  Am.  St.  Rep.  193;  Brown  v.  Wilson,  45  S.  Car.  519,  23 
S.  E.  Rep.  630,  55  Am.  St.  Rep.  779;  Ward  v.  W'illiams,  26  111.  447, 
79  Am.  Dec.  385,  and  note:  Philadelphia  R.  R.  Co.  v.  Cowell,  28  Pa. 
St.  329,  70  Am.  Dec.  128;  Gillett  v.  Whiting,  141  N.  Y.  71,  35  N.  E. 
Rep.  939,  38  Am.  St.  Rep.  762. 

§  88.     By  accepting  benefits.— One  of  the  most 

common  methods  of  ratifying  an  act.  is  by  accepting  the 
benefits  of  it;  and  it  is  the  general  rule  that  a  person 
who,  with  knowledge  of  the  facts,  accepts  the  benefits 
of  the  act  must  accept  also  its  responsibilities. 

See  Hyatt  v.  Clark,  118  N.  Y.  563,  Cas.  Ag.  177;  .Tones  v.  Atkin- 
son, 68  Ala.  167,  Cas.  Ag.  192;  Thacher  v.  Pray,  113  Mass.  291,  18 
Am.  Rep.  480,  Cas.  Ag.  204;  Mayer  v.  Dean,  115  N.  Y.  556,  22  N.  E. 
Rep.  261,  5  L.  R.  A.  540;  Mining  Co.  v.  Bank,  95  Fed.  Rep.  23,  36 
C.  C.  A.  633;  Thomas  v.  City  Nat  Bank,  40  Neb.  501,  58  N.  W.  Rep. 
943,  24  L.  R.  A.  263;  Reed  v.  Morton,  24  Neb.  760,  40  N.  W.  Rep. 
282,  1  L.  R.  A.  736;  Savings  Bank  v.  Butchers'  Bank,  107  Mo.  133, 
17  S.  W.  Rep.  644,  28  Am.  St.  Rep.  405;  Gunther  v.  Ullrich,  82  Wis. 
222,  52  N.  W.  Rep.  88,  33  Am.  St.  Rep.  32;  Sherman  Center  Town  Co. 
v.  Morris,  43  Kan.  282,  19  Am.  St.  Rep.  134;  Hitchcock  v.  Griffin  Co., 
99  Mich.  447,  58  N.  W.  Rep.  373,  41  Am.  St.  Rep.  624. 

§  89.     By   bringing    suit. — Another    common 

method  is  by  bringing  suit  based  upon,  and  for  the  en- 
forcement of  the  act,  This,  when  done  with  a  knowl- 
edge of  the  facts,  shows  an  intention  to  take  the  bene- 
fits of  the  act,  and  the  burdens  must  be  taken  with  the 
benefits. 

This  rule,  however,  would  not  apply  to  suits  brought 
for  the  purpose  of  avoiding  or  repudiating  the  unau- 
thorized act,  or  to  suits  brought  to  prevent  loss  by  it. 

See  Shoninger  v.  Peabody,  57  Conn.  42,  Cas.  Ag.  172;  Roberts  v. 
Rumley,  58  Iowa,  301,  Cas.  Ag.  143;  Park  Bros.  &  Co.  v.  Kelly  Axe 
Mfg.  Co.,  49  Fed.  Rep.  618,  6  U.  S.  App.  26,  1  C.  C.  A.  395;  Pickle  v. 
Muse,  88  Tenn.  380,  12  S.  W.  Rep.  919,  17  Am.  St.  Rep.  900;  Wheeler 
&  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  St.  398,  22  Atl.  Rep.  667,  27 
Am.  St.  Rep.  638. 


§§90-92.] 


OF  AUTHORITY  BY  RATIFICATION. 


§90.     By  acquiescence. — When  a  person  learns 

that  another  has  assumed,  without  authority,  to  do 
some  act  for  him  as  his  agent,  he  has  the  option  to 
repudiate  or  ratify  the  act,  but  he  must  do  one  thing 
or  the  other,  lie  has  a  reasonable  time  within  who  h 
to  decide,  but  if,.,  with  knowledge  of  the  facts,  he  fails 
to  repudiate  the  act  within  a  reasonable  time,  he  will 
Ik'  deemed  to  have  affirmed  it. 

See  Heyn  v.  O'Hagen,  60  Mich.  150,  Cas.  Ag.  1S6;  Hazard  v. 
Spears,  4  Keyes,  469,  Cas.  Ag.  182;  Hamlin  v.  Sears,  82  N.  Y.  327, 
Cas.  Ag.  136;  Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.)  447,  Cas. 
Ag.  110;  Scott  v.  Railway  Co.,  86  N.  Y.  200,  Cas.  Ag.  148;  Central 
R.  &  B.  Co.  v.  Cheatham,  85  Ala.  292,  4  So.  Rep.  828,  7  Am.  St.  Rep. 
48;  Philadelphia  R.  R.  Co.  v.  Cowell,  28  Pa.  St.  329,  70  Am.  Dec. 
128;  Augusta,  etc.,  R.  Co.  v.  Kittel,  52  Fed.  Rep.  63,  2  C.  C.  A.  615; 
Central  Trust  Co.  v.  Ashville  Land  Co.,  72  Fed.  Rep.  361,  18  C.  C.  A. 
590;  Union  Switch  Co.  v.  Johnson  Co.,  61  Fed.  Rep.  940,  10  C.  C.  A.; 
Raymond  v.  Palmer,  41  La.  Ann.  425,  6  So.  Rep.  692,  17  Am. 
St.  Rep.  398;    Quinn  v.  Dresbach,  75  Cal.  159,  7  Am.  St.  Rep.  138. 

This  rule,  according  to  the  weight  of  au- 


§  91.     - 

thority,  applies  whether  the  person  who  did  the  unau- 
thorized act  was  an  agent  for  other  purposes  or  a  mere 
stranger  who  had  volunteered  to  act  as  agent;  though 
ratification  is  less  readily  presumed  where  the  person 
was  such  a  stranger. 

See  Heyn  v.  O'Hagen,  60  Mich.  150,  Cas.  Ag.  186;  Ladd  v.  Hilde- 
brant,  27  Wis.  135,  9  Am.  Rep.  445;  Terry  v.  Provident  Fund  Society, 
13  Ind.  App.  1,  41  N.  E.  Rep.  18,  55  Am.  St.  Rep.  217. 

6.     The  Effect  of  Ratification. 

§  92.  In  general. — The  general  effect  of  ratification 
under  the  conditions  named,  is  as  stated  in  the  familiar 
maxim  Omnis  ratihabitio  retrotrahitur  ct  vmndat 
■priori  aequiparatur,  that  the  act  becomes  the  act  of 
the  principal,  with  its  benefits  and  burdens,  from  the 
beginning,  as  though  he  had  previously  authorized  it 
to  be  done;  except,  that  if  the  rights  of  third  persons 

■  I..  I    ■  IN  ,1    ,  I  '  '  l—^fc— ■»>■ 


54  OP  AUTHORITY  BY  RATIFICATION.  ["§92-95. 

have   intervened  between  the  act  and  its  ratiiication, 
such  rights  cannot  be  cut  off  by  the  ratification. 

See  Cook  v.  Tullis,  L8  Wall.  (U.  S.)  332,  Cas.  Ay.  160;  Mccracken 
v.  San  Francisco,  16  Cal.  5S1,  Cas.  Ag.  109. 

§93.  Itevocability. — Ratification,  once  intelli- 
gently made,  is  irrevocable,  so  far  as  the  rights  of  third 
persons  arc  concerned;  but,  on  the  other  hand,  repudi- 
ation unless  it  lias  led  some  one  interested  to  change 
his  situation  to  his  detriment  may  ordinarily  be  subse- 
quently changed  to  ratification. 

See  Jones  v.  Atkinson,  68  Ala.  167,  Cas.  Ag.  192;  Neely  v.  Jones, 
16  W.  Va.  625,  37  Am.  Rep.  794;  Sanders  v.  Peck,  87  Fed.  Rep.  61. 
59  U.  S.  App.  248,  30  C.  C.  A.  530. 

§  94.    Effect  as  between  principal  and  agent.  — As  _ 

between  the  principal  and  the  agent,  the  effect  of  the 
ratification  is  to  release  the  agent  from  all  liability  to 
the  principal  for  acting  without  authority;  and  to  give 
the  agent  Uiesa  in< '  lights  against  the  principal, — as  for 
compensation,  reimbursement,  etc., — which  he  would 
have  had  if  the  act  had  been  previously~alithorized. 
The  principal  must  ratify  the  whole  act,  and  his  con- 
duct, it  is  held,  will  be  liberally  construed  in  favor  of  a 
ratification. 

See  Wilson  v.  Dame,  58  N.  H.  392,  Cas.  Ag.  526;  Bank  v.  Bank, 
13  Bush  (Ky.),  526,  26  Am.  Rep.  211,  Cas.  Ag.  206;  Hazard  v.  Spears, 
4  Keyes  (N.  Y.),  469,  Cas.  Ag.  182;  Szymanski  v.  Plassan,  20  La. 
Ann.  90,  96  Am.  Dec.  382;  Risbourg  v.  Bruckner,  3  Com.  B.  N.  S. 
812,  91  Eng.  Com.  L.  810;  Brewer  v.  Sparrow,  7  B.  &  C,  310,  14  Eng. 
Com.  L.  144;  Frixione  v.  Tagliaferro,  10  Moore's  Pr.  Coun.  Cas.  175; 
Smith  v.  Cologan,  2  Term  Rep.  188n. 

§  95.  Effect  as  to  rights  of  third  party  against 
principal. — As  between  the  principal  and  the  party  with 
whom  the  agent  dealt,  the  effect  of  the  ratification  is  to 
give  the  other  party  the  same  rights  against  the  princi- 
pal which  he  would  have  had  if  the  act  had  been  pre- 


5§  95-97.]  OF  AUTHORITY  BY  RATIFICATION.  55 

viously  authorized.  This  is  the  aspect  of  the  question 
most  frequently  arising,  and  the  rule  is  declared  in  the 
familiar  ma:-:!;n  Omiiis  ratihubitio  retrotrahitur  et 
rnandato  priori  aeguiparatur. 

See  Ileyn  v.  O'llagen.  60  Mich.  150,  Cas.  Ag.  186;  Hyatt  v.  Clark, 
118  N.  Y.  5G3,  Cas.  Ag.  177. 

§  96.  Effect  as  to  rights  of  principal  against 
third  party. — The  ratification  of  the  act  by  the  princi- 
pal being  equivalent  to  prior  authority,  will  operate  to 
cut  off  any  remedies  which  he  might  otherwise  have 
had  against  the  third  party  based  upon  the  want  of 
authority,  a.s,  for  example,  the  right  to  recover  property 
or  money  received  by  the  other  party  from  the  agent. 

Whether  the  principal  by  ratifying  it  can  acquire  the 
same  right  to  enforce  against  the  other  party  a  con- 
tract made  on  his  behalf  which  he  would  have  had  if  it 
had  been  previously  authorized,  is  a  question  upon 
which  the  cases  are  in  some  conflict.  The  rule  sus- 
tained by  the  weight  of  authority  seems  to  be  that  the 
principal  mav  ratifv  the  unauthorized  contract  and 
then  enforce  it  against  the  other  party,  if  he  does  so 
within  a  reasonable  time  and  before  the  other  party  has 
withdrawn  from  it. 

See  Dodge  v.  Hopkins,  14  Wis.  686,  Cas.  Ag.  215;  McClintock  v. 
Oil  Co.,  146  Penn.  144,  28  Am.  St.  Rep.  785,  Cas.  Ag.  219;  Bolton  v. 
Lambert,  L.  R.  41  Ch.  Div.  295,  Cas.  Ag.  222;  In  re  Tiedeman  [1899], 
2  Q.  B.  66;  Atlee  v.  Bartholomew,  69  Wis.  43,  5  Am.  St.  Rep.  103, 
and  note;  25  Am.  L.  Rev.  74. 

The  Wisconsin  cases  and  the  English  cases  represent  extreme 
views.  The  rule  of  the  Pennsylvania  case  is  more  likely  to  be  fol- 
lowed. The  question  is  one  of  real  difficulty.  In  addition  to  the 
discussions  referred  to  in  the  notes  to  the*  cases,  see  9  Harv.  L. 
Review,  60;  5  Law  Quar.  Rev.  440;  Fry  on  Specific  Performance 
(3d  Eng.  ed.),  711. 

§  97.  Effect  between  agent  and  other  party. — In 
contract. — A  person  who  assumes  to  deal  as  agent 
with  third  parties  in  matters  concerning  which  he  has 


5G  OF  AUTHORITY  BY  RATIFICATION.  [§§  97-98. 

no  authority  incurs,  in  many  instances,  as  will  be  seen 
hereafter,  an  individual  liability  to  the  person  so  dealt 
with.  As  between  such  another  party  and  the  agent 
of  a  disclosed  principal,  the  effect  of  the  ratification 
in  contract  cases  is  to  release  the  agent  from  liability 
to  the  other  party  for  having  made  a  contract  without 
authority;  and  it  gives  the  agent  the  same  rights 
against  the  other  party  which  he  would  have  had  if  the 
contract  had  been  previously  authorized. 

See  Spittle  v.  Lavender,  2  Brod.  &  Bing.  452,  6  Eng.  Com.  L.  224. 

If  the  principal  were  undisclosed,  ratification  will 
not  protect  the  agent  from  liability  to  the  other  party, 
but  it  will  charge  the  principal  and  give  the  other  party 
an  option  to  hold  the  principal  or  the  agent  as  he 
chooses.^ 

See  post,  §  243. 

§  98.     In  tort. — But  in  cases  of  tort,  the  rule 

is  different:  The  ratification  by  the  principal  makes 
him  liable  also  for  the  tort  to  the  third  person,  but  it 
does  not  release  the  agent  from  his  liability  to  the  third 
person  for  his  participation  in  the  tort.  Both  princi- 
pal and  agent  are  thereafter  liable.  It  is  no  defense 
to  the  agent  when  sued  for  a  tort  that  he  acted  as  the 
agent  of  another  in  committing  it. 

See  Stephens  t.  Elwall,  4  Maule  &  Sel.  259,  Cas.  Ag.  226;  Delaney 
v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456,  Cas.  Ag.  514;  Os- 
borne t.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437,  Cas.  Ag.  518;  Miller 
v.  Wilson,  98  Ga.  567,  58  Am.  St.  Rep.  319. 


§99.] 


DELEGATION    OF    AUTHORITY. 


57 


CHAPTER   VI. 


OF  DELEGATION  OF  AUTHORITY  BY  THE  AGENT. 


99.  In  general. 

100-2.  Agent  generally  cannot 
delegate  authority  to 
sub-agent. 


§  103  Under  what  circumstances 
justified. 
104-5.  Effect  of  appointment  of 
sub-agent. 


§99.  In  general. — Thus  far  there  has  been  consid- 
ered the  (question  of  the  appointment  of  agents  by  the 
principal  himself,  either  before  the  act  was  done — by 
authorization,  or  after  it  was  done — by  ratification. 
Some  consideration  is  required  of  the  question  whether 
authority  can  be  conferred  not  by  the  principal  him- 
self but  by  some  one  else  to  whom  that  power  has  been 
confided. 

There  can  be  no  doubt,  of  course,  that  the  principal 
may  authorize  an  agent  to  employ  other  agents,  as 
where  the  manager  of  a  business  is  clothed  with  the 
power  of  employing  all  such  servants  and  agents  as  the 
conduct  of  the  business  may  require.  In  such  eas<  -. 
employment  of  agents  by  the  agent  authorized  to  em- 
ploy them,  within  the  scope  of  the  employment,  is  an 
appointment  by  the  principal  under  the  general  maxim 
Qui  facit  per  alium,  farit  per  se}  and  the  agents  so  ap- 
pointed are  the  agents  of  the  principal  as  fully  as 
though  appointed  by  him  in  person. 

Another  and  a  different  question  is,  not  whether  an 
agent  may  thus  be  authorized  to  appoint  agents  who 
will  derive  authority  directly  from  the  principal,  but 
whether  an  agent  who  has  been  given  certain  authority 
may  himself  hand  that  authority  over  in  whole  or  in 
part  to  another,  who  is  to  exercise  it  either  for  ^v  under 


58  DELEGATION    OF    AUTHORITY.  [§§99-101. 

him.  It  is  the  question,  not  whether  an  agent  may  be 
authorized  to  appoint  other  agents,  but  whether  he  may 
appoint  sub-agents.  The  difference  may  be  seen  by 
inquiring  whether  an  agent  appointed  by  an  agent  is 
the  agent  of  the  principal  or  the  agent  of  the  agent. 

The  act  of  handing  down  authority  conferred  is  fre- 
quently  spoken  of  as  delegation  of  the  authority,  and 
the  question  arises  in  other  departments  of  the  law  than 
agency. 

§  100.  Agent  generally  cannot  delegate  authority 
to  sub-agent. — It  is  the  general  rule,  finding  expres- 
sion in  the  familiar  maxim,  Delegatus  non  potest  dele- 
gari,  that  an  agent  cannot  delegate  his  authority  to  a 
sub-agent,  without  the  expressed  or  implied  consent  of 
his  principal.  This  is  always  the  rule  where  the  act 
to  be  performed  requires  the  exercise  of  judgment  or 
discretion,  or  where  the  principal  evidently  trusted  to 
a  personal  performance  by  the  agent. 

The  rule  is  based  upon  the  presumption  that  the 
principal  has  selected  the  particular  agent  because  he 
relied  upon,  or  desired  the  benefit  of,  that  particular 
person's  judgment,  discretion,  experience,  skill  or  abil- 
ity, and  it  would  be  a  manifest  injustice,  as  well  as 
a  disappointment  of  expectations,  if  the  person  so 
selected  could  turn  the  matter  over  to  another  of  whom 
the  principal  may  be  ignorant  and  to  whom  he  might 
not  be  willing  to  entrust  the  authority. 

See  Appleton  Bank  v.  McGilvray,  4  Gray  (Mass.)  518,  64  Am. 
Dec.  92,  Cas.  Ag.  229;  Birdsall  v.  Clark,  73  N.  Y.  73,  29  Am.  Rep. 
105,  Cas.  Ag.  231;  McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800, 
17  Am.  St.  Rep.  178,  6  L.  R.  A.  121;  Davis  v.  King,  66  Conn.  465, 
50  Am.  St.  Rep.  104  and  exhaustive  note;  Central,  etc.,  Ry.  Co.  v. 
Price,  106  Ga.  176,  71  Am.  St.  Rep.  246. 

§  101.    These  are  the  considerations  also  which 

forbid  the  agent's  doing  what  is  really  the  same  thing 


§§  101-103.]  DELEGATION    OF    AUTHORITY.  5S 

under  another  name,  that  is,  assigning  his  contract  of 
agency.  "In  the  case  of  sue!)  a  contract,"  it  is  said  in 
a  recent  case,  "it  is  a  presumption  of  law  that  the  trust 
is  exclusively  personal,  and  that  it  cannot  be  trans- 
ferred  or  delegated  by  the  agent  without  his  principal's 
consent." 

See  Bancroft  v.  Scribner,  72  Fed.  Rep.  988,  44  U.  S.  App.  480,  21 
C.  C.  A.  352;  Peterson  v.  Christensen,  26  Minn.  377,  Cas.  Ag.  234. 

§  102.     The  rule,  however,  is  not  inflexible.     It 

is  based  upon  the  presumed  intention  of  the  principal 
and  is  intended  for  his  protection.  There  are  cast-, 
moreover,  wherein  the  reason  is  not  present,  and  the 
rule  should  not  then  prevail.  Ifjhe  case  does  not  in- 
volve the  exercise  of  any  special  skill,  judgment  or  dis- 
cretion, or,  though  it  does,  if  it  appears  that  the  prin- 
cipal is  willing  that  the  authority  may  be  delegated, 
then  exceptions  should  be  recognized,  and  the  law 
admits  them.     Hence — 

§  103.  Under  what  circumstances  justified. — Unless 
the  contrary  is  expressed,  authority  to  appoint  a  sub- 
agent  will  be  implied — (1)  where  the  act  to  be  done 
is  mechanical  or  ministerial  only;  (2)  where  the  au- 
thority can  not  be  executed  without  the  employment 
of  sub-agents;  (3)  where  their  employment  is  in  accord- 
ance with  a  known  and  well  established  usa<re;  and 
(4)  where  the  circumstances  were  such  that  it  was  evi- 
dently contemplated,  when  the  agent  was  appointed, 
that  sub-agents  would  be  employed. 

See  Harralson  v.  Stein,  50  Ala.  347,  Cas.  Ag.  23G;  Grady  v. 
Insurance  Co.,  60  Mo.  116.  Cas.  Ag.  23S;  Exchange  Nat.  Ban!.  7. 
National  Bank,  112  U.  S.  276,  Cas.  Ag.  239;  Cummins  v.  Heald,  24 
Kan.  COO,  36  Am.  Rep.  264,  Cas.  Ag.  247;  Bailie  v.  Augusta  Say. 
Bank,  95  Ga.  277,  21  S.  E.  Rep.  717,  51  Am.  St.  Rep.  71;  McKlnnon 
v.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  17  Am.  St.  Rep.  ITS  6  L.  R. 
A.  121. 


60  DELEGATION    OF    AUTHORITY.  [§§  103-105. 

An  appointment  of  a  sub-agent,  though  not  originally 
authorized,  may  be  ratified  by  the  principal  in  the 
same  manner  and  with  like  effect,  as  in  other  cases. 

See  Saveland  v.  Green,  40  Wis.  431.  See  also  Barret  v.  Rhern,  6 
Bush  (Ky.)  466;  Montagu  v.  Forwood  [1893],  2  Q.  B.  Div.  350. 

§  104.    Effect  of  appointment  of  sub-agent. — If  the 

sub-agent  is  employed  with  the  express  or  implied  con- 
sent of  the  principal,  then  the  sub-agent  is  to  be 
regarded  as  the  agent  of  the  principal.  He  is  liable  to 
the  principal  directly,  and  the  original  agent  is  not 
responsible  to  the  principal  for  the  acts  of  the  sub- 
agent,  unless  lie  failed  to  exercise  good  faith  and  due 
care  in  his  appointment. 

See  Davis  v.  King,  66  Conn.  465,  50  Am.  St.  Rep.  104,  and  note; 
Bradford  v.  Hanover  Ins.  Co.,  102  Fed.  Rep.  48,  43  C.  C.  A.  310,  49 
L.  R.  A.  530;  Franklin  Fire  Ins.  Co.  v.  Bradford,  201  Pa.  St.  32,  50 
Atl.  Rep.  286,  55  L.  R.  A.  408,  1  Michigan  Law  Review,  140. 

§  105.     If  the  employment  of  the  sub-agent  was 

not  so  authorized  by  the  principal,  then  the  sub-agent 
is  to  be  deemed  the  agent  of  the  original  agent  only, 
and  the  latter  is  responsible  to  the  principal  for  the 
acts  of  the  sub-agent. 

See  Barnard  v.  Coffin,  141  Mass.  37,  55  Am.  Rep.  443,  Cas.  Ag. 
249;  Hoag  v.  Graves,  81  Mich.  628,  46  N.  W.  Rep.  109. 


§§  1CKJ-107.]  TERMINATION    OF    THE    AGENCY. 


61 


CHAPTER  VII. 


OF  THE  TERMINATION  OF  THE  AGENCY. 


9  106.  In  general. 

I.     Termination  by  Act  of 
Parties. 

107.  What  methods  fall  under 

this  head. 

108.  Termination    by    original 

agreement. 

109.  Termination      by      subse- 

quent act  of  parties. 

1.  Termination     By     Mutual 

Consent. 

110.  Agency     may     be     termi- 

nated   at    any    time    by 
mutual  consent. 

2.  Revocation  By  Principal. 

111-112.  Power  of  principal  to 
revoke. 

113-115.  Not       when      coupled 
with  an  interest. 

116.  How  revoke. 

117.  Notice  of  revocation. 

3.  Renunciation  By  Agent. 

118.  Power    of    agent    to    re- 

nounce authority. 


§  119.  Enforcement    of    contract 
of  agency. 

120.  Agency  at  will. 

121.  Discharge  of  agent  justi- 

fied when. 

122.  Renunciation      by      agent 

justified  when. 

II.    Termination  by  Opera- 

\  UK  Law. 

123.  In  general. 

124.  Death  of  principal. 

125.  Death  of  agent. 

126.  Insanity    of    principal    or 

agent. 

127.  Bankruptcy     of    principal 

or  agent. 

128.  Marriage  of  principal. 

129.  War. 

130.  Destruction      of      subject 

matter. 

131.  Termination      of      power 

over     subject     matter— 
Sub-agents. 


§  100.  In  general. — Ilaving  now  given  some  atten- 
tion to  the  question  of  how  agency  may  be  created,  it 
may  be  well  to  consider  next  the  question  of  how  it  may 
be  terminated.  The  agency  may  be  terminated  in  one 
of  two  general  ways: — 

1.  By  the  act  of  the  parties. 

2.  By  operation  of  law. 

I.      TERMINATION    BY    ACT   OF    PARTIES. 

§  107.    What  methods  fall  under  this  head. — The 
agency  may  be  terminated  by  the  act  of  the  parti 
either — 


62  TERMINATION   OF   THE    AGENCY.  [§§  107-110. 

(a)     By  force  of  their  original  agreement;  or 
(6)     By  the  subsequent  act  of  one  or  both  of  them. 

§108.  Termination  by  original  agreement, — The 
authority  will  be  terminated  by  force  of  the  original 
agreement  where  it  comes  to  an  end  because  of  some 
limitation  either  expressly  or  impliedly  impressed  upon 
it  at  the  time  of  its  creation. 

By  force  of  the  original  agreement,  therefore,  the 
agency  is  terminated — 

(1)  When  the  object  for  which  it  was  created  has 
been  accomplished;  and 

(2)  When  the  time  originally  fixed  for  its  continu- 
ance has  expired. 

§  109.     Termination  by  subsequent  act  of  parties. 

— The  authority  will  be  terminated  by  the  subsequent 
act  of  the  parties — 

(1)  Where  it  is  terminated  by  their  mutual  con- 
sent. 

(2)  Where  the  principal  revokes  it. 

(3)  Where  the  agent  renounces  it. 

1.     Termination  by  Mutual  Consent. 

§  110.  Agency  may  be  terminated  at  any  time 
by  mutual  consent. — The  agency  may  be  terminated 
by  mutual  consent  of  the  principal  and  agent  at  any 
time.  Notwithstanding  any  limitation  or  condition 
originally  imposed,  the  same  power  that  made  the  ar- 
rangement in  the  first  instance  can  subsequently  waive 
the  condition  or  remove  the  limitation.  So  far  as  any 
authority  depends  upon  the  act  of  the  parties  (as  dis- 
tinguished from  authority  created  by  law)  the  law  has 
no  purpose  to  subserve  which  will  require  the  continu- 
ance of  the  relation,  when  both  parties  desire  and  agree 
that  it  shall  be  terminated. 


§§111-113.]  TERMINATION    OF    THE    AGENCY.  (IH 

2.     Revocation  by  Principal. 

§  111.  Power  of  principal  to  revoke.— Usually  at 
any  time. — In  the  ordinary  case,  agency  is  (rented  to 
subserve  some  purpose  which  the  principal  has  in  mind. 
It  is  the  principal's  will  that  is  to  be  executed,  his 
interest  that  is  to  be  promoted.  The  agent  usually  has 
no  other  interest  than  to  carry  the  principal's  purpose 
into  effect  and  earn  the  promised  compensation.  If, 
therefore,  the  principal's  circumstances  are  altered,  if 
his  purpose  change,  if  his  inter-1  will  be  better  served 
by  discontinuing  the  enterprise  than  by  prosecuting  it, 
he  certainly  ought  to  have  it  in  his  power  to  withdraw 
the  authority;  and  the  agent  can  ordinarily  have  no 
interest  in  the  matter  which  will  justify  him  in  insist- 
ing upon  going  on,  if  his  claim  to  such  damages  as  he 
may  legally  have  sustained  by  the  termination  of  the 
authority  be  recognized.  It  is,  therefore,  the  general 
rule  that  the  principal  may  revoke  the  agent's  author- 
ity at  any  time  before1  its  execution  and  for  any  reason 
deemed  sufiicient  to  himself. 

See  Clark  v.  Marsiglia,  1  Denio  317,  43  Am.  Dec.  670;  State 
v.  Walker,  88  Mo.  279;  Owen  v.  Frink,  24  Cal.  171,  178;  Lord  v. 
Thomas,  64  N.  Y.  107. 

§112.     Of    course,    if    the    authority    has   been 

executed,  or  the  agent  has  entered  into  a  legally  bind- 
ing contract,  the  authority,  though  otherwise  revocable, 
cannot  be  revoked  so  as  to  affect  these  acts  already 
done.  If  the  authority  has  been  executed  in  pari  only, 
and  the  residue  be  severable,  the  authority  as  to  such 
residue  may  be  revoked  as  in  other  cases. 

§  1 13.    Not  when  coupled  with  an  interest. — 

"While  revocability  is  thus  the  rule  in  the  ordinary  c. 
there  may  be  cases  wherein  there  is  something  more 
than  a  mere  authority — cases  wherein  the  agent  is  also 


64  TERMINATION   OF   THE   AGENCY.         [§§113-114 

something  more  than  a  mere  agent — cases  wherein  he 
has,  in  the  property  or  thing  concerning  which  the  au- 
thority exists,  some  proprietary  interest  of  his  own 
which  the  continuance  of  the  authority  is  necessary  to 
protect — cases  wherein,  in  the  language  of  the  law, 
the  authority  is  "coupled  with  an  interest."  In  such 
cases  the  rule  of  revocability  does  not  apply  so  far  as 
to  permit  the  principal  to  cut  off  the  authority  neces- 
sary ior  the  protection  of  the  agent's  interest. 

See  Smyth  v.  Craig,  3  Watts  &  Serg.  (Pa.)  14;  De  Forest  v. 
Bates,  1  Edw.  (N.  Y.)  Ch.  394;  Raymond  v.  Squire,  11  Johns.  (N. 
Y.)  47;  Jackson  v.  Burtis,  14  id.  391. 

§  114.       Precisely  what  shall  be  deemed  to  be 

an  authority  "coupled  with  an  interest"  is  not  easy  to 
define,  but  it  is  everywhere  agreed  that  it  must  be  an 
interest  or  estate  in  the  subject  matter  of  the  agency, 
and  not  merely  an  interest  in  the  results  which  are  to 
flow  from  the  execution  of  the  authority. 

An  interest  in  the  subject  matter,  concerning  which 
the  authority  was  given,  in  order  to  render  it  available 
as  a  security  for  some  claim  or  demand,  would  be  an 
interest  which  would  prevent  revocation;  but  an  inter- 
est merely  in  the  form  of  a  right  to  commissions  or 
profits  out  of  the  proceeds  of  the  execution  of  the 
authority  would  not  be  sufficient. 

In  the  former  case  there  is  something  existing  in 
which  the  agent  has  a  present  interest  before  the  au- 
thority is  executed;  in  the  latter  case  the  thing  in  which 
he  has  an  interest,  namely,  the  proceeds  of  the  execu-' 
tion  of  the  authority,  obviously  cannot  come  into  exist- 
ence until  after  the  authority  is  executed.  The  former 
interest  is  sufficient  to  prevent  revocation ;  the  latter  is 
not. 

See  Alworth  v.  Seymour,  42  Minn.  526,  Cas.  Ag.  314;  Mansfield 
v.  Mansfield,  6  Conn.  559,  16  Am.  Dec.  76;  Chambers  y.  Seay,  12, 
Ala.  373,  Cas.  Ag.  252. 


C 


§§115-116.]  i  ELIMINATION    OF    THE    AGENi  65 

§  115.    The   mere   fact   that    the  authority   w£U 

called  "irrevocable"  or  "exclusive"  will  not  prevent  its 
revocation. 

See  Chambers  v.  Seay,  73  Ala.  373,  Cas.  Ag.  252;  Blackstone  y. 
Buttermore,  53  Penn.  266,  Cas.  Ag.  255. 

And  even  the  fact  that  the  principal  may  have  ex- 
pressly agreed  that  the  agency  shall  continue  for  a  cer- 
tain period  will  not  prevent  his  revoking  the  authority 
before  that  time,  if  not  coupled  with  an  interest;  but 
he  will  be  liable  to  the  agent  for  the  damages  which 
the  agent  sustains  on  account  of  the  revocation  con- 
trary to  the  agreement. 

See  Standard  Oil  Co.  v.  Gilbert,  84  Ga.  714,  8  L.  R.  A.  410,  Cas. 
Ag.  273;  Missouri  v.  Walker,  125  U.  S.  339,  Cas.  Ag.  277;  Wilcox  & 
G.  Sew.  Mach.  Co.  v.  Ewing,  141  U.  S.  627,  Cas.  Ag.  283;  Durkee  v. 
Gunn,  41  Kan.  496,  13  Am.  St.  Rep.  300,  Cas.  Ag.  312. 

Distinction  is  sometimes  made  in  these  cases  between 
the  power  to  revoke  and  the  right  to  revoke;  the  prin- 
cipal always  having  the  power  to  revoke  but  not  hav! 
the  rig  lit  to  do  so  in  those  cases  wherein  he  has  agreed 
not  to  exercise  his  power  during  a  certain  period.  If, 
in  the  latter  case,  he  does  exercise  his  power  he  must 
respond  in  damages. 

See  Alworth  v.  Seymour,  42  Minn.  526,  Cas.  Ag.  314. 

The  same  conclusion  is  reached  by  distinguishing 
between  the  authority  and  the  contract  of  employment. 
The  authority  may  be  withdrawn  at  any  moment,  bur 
the  contract  of  employment  can  not  be  terminated  in 
violation  of  its  terms  without  the  principal's  becoming 
liable  in  damages. 

See  Turner  v.  Sawdon  [1901],  2  K.  B.  653. 

§116.  How  revoke. — The  revocation  need  not  be 
express.  It  may  be  implied  from  circumstances,  as 
where  the  principal  disposes  of  the  subject  matter  of 

i 


66  TERMINATION   OF   THE   AGENCY.         [§§116-118. 

the  agency,  or  appoints  another  agent  to  perform  the 
undertaking,  or  himself  intervenes  to  perform  it  in  per- 
son. It  will  also  in  general  result  from  the  dissolution 
of  a  partnership  or  of  a  corporation  which  was  the  prin- 
cipal; and  from  the  severance  of  the  joint  interest  of 
joint  principals. 

See  Rowe  v.  Rand,  111  Ind.  206,  Cas.  Ag.  257;  Ahern  v.  Baker,  34 
Minn.  98,  Cas.  Ag.  288;  Salton  v.  Cycle  Co.  '[1900]  1  Ch.  Div.  43. 

§  117.  Notice  of  revocation. — Upon  revoking  the 
authority  of  a  general  agent,  the  principal  must  give 
notice  of  the  revocation  to  persons  who  have  previously 
dealt  with  the  agent  as  such,  or  he  will  continue  to  be 
bound  by  the  agent's  acts.  The  notice  required  is  simi- 
lar to  that  required  upon  the  dissolution  of  a  partner- 
ship, namely,  actual  notice  to  those  who  have  extended 
credit  in  reliance  upon  the  authority  and  general  public- 
notice  to  others. 

See  Claflin  v.  Lenheim,  66  N.  Y.  301,  Cas.  Ag.  294;  Wheeler  v. 
McGuire,  86  Ala.  398,  Cas.  Ag.  362;  Maxcy  Mfg.  Co.  v.  Burnham,  89 
Me.  538,  36  Atl.  1003,  56  Am.  St.  Rep.  436. 

Where  a  power  of  attorney  has  been  recorded,  the  instrument  re- 
voking it  should  be  likewise  recorded.  Gratz  v.  Improvement  Co., 
82  Fed.  Rep.  381,  53  U.  S.  App.  499,  27  C.  C.  A.  305,  40  L.  R.  A.  393. 

Notice  is  not  necessarv  of  the  revocation  of  the  au- 
thority  of  a  special  agent,  unless  he  has  entered  upon 
the  execution  of  the  authority. 

Notice  must  also  be  given  to  the  agent  of  the  revoca- 
tion of  his  authority. 

See  Salton  v.  Cycle  Co.  [1900]  1  Ch.  Div.  43. 

3.     Renunciation  by  Apent. 

§  118.    Power  of   agent    to  renounce    authority. 

— The  agent  may  also  renounce  his  authority  at  any 
time,  but  if  he  does  so  in  violation  of  an  agreement  to 
act  for  a  particular  time  or  if  he  fails  to  give  reasonable 


§5118-121.]  TERMINATION    OF    THE    AGENCY.  67 

notice,  he  will  be  liable  to  the  principal  for  the  damages 

sustained. 

§  119  Enforcement  of  contract  of  agency.-  Courts 
will  not  undertake  to  enforce  specific  performance  of  a 
contract  of  agency,  nor  will  they  interfere  to  prevenl 
by  injunction  a  violation  of  the  contract,  except  in 
cases  involving  services  of  such  a  peculiar  and  personal 
character  that  damages  would  be  inadequate  cod  pen- 
sation. 

See  Alworth  v.  Seymour,  42  Minn.  52C,  Cas.  Ag.  314;  Cort  v. 
Lassard,  18  Oreg.  221,  17  Am.  St.  Rep.  726,  Cas.  Ag.  31G;  Rogers 
Mfg.  Co.  v.  Rogers,  58  Conn.  356,  18  Am.  St.  Rep.  278;  Bishop  v. 
American  Preservers'  Co.,  157  111.  284,  41  N.  E.  Rep.  765,  48  Am.  St. 
Rep.  317. 

§  120.  Agency  at  will.— Where  no  period  is  fixed 
for  the  continuance  of  the  agency,  and  no  stipulation 
is  made  respecting  its  termination,  it  is  presumed  to 
be  at  will,  and  either  party  may  terminate  it  without 
liability  at  any  time  by  giving  reasonable  notice. 

See  Sheahan  v.  Steamship  Co.,  87  Fed.  Rep.  167,  57  U.  S.  App. 
254,  30  C.  C.  A.  593;  Rees  v.  Pellow,  97  Fed.  Rep.  167,  38  C.  C.  A.  94. 

But  contracts  for  a  definite  time  may  in  some  cases 
be  presumed  from  the  circumstances,  even  though  no 
express  understanding  to  that  effect  was  had. 

See  Rhodes  v.  Forwood,  L.  R.  1  App.  Cas.  256,  Cas.  Ag.  259; 
Turner  v.  Goldsmith  [1891],  1  Q.  B.  Div.  544,  Cas.  Ag.  266;  Lewis 
v.  Insurance  Co.,  61  Mo.  534,  Cas.  Ag.  269;  Glover  v.  Henderson,  120 
Mo.  367,  25  S.  W.  Rep.  175,  41  Am.  St.  Rep.  695;  Warren  Chemical 
Co.  v.  Holbrook,  118  N.  Y.  586,  23  N.  E.  Rep.  908,  16  Am.  St. 
Rep.  788. 

§121.  Discharge  of  agent  justified  when.— And 
even  though  employed  for  a  definite  time,  the  agent 
may  lawfully  be  discharged,  if  he  proves  incompetent 
for  the  task  assumed,  or  if  he  is  guilty  of  wilful  dis- 
obedience  to   lawful   orders   or  of  such   disorderly  or 


68  TERMINATION    OF    THE    AGENCY.  [§§  121-124. 

immoral  conduct  as  amounts  to  a  breach  of  his  implied 
undertaking  to  conduct  himself  with  fidelity  and  pro- 
priety. 

See  Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415,  Cas.  Ag. 
289;  Bass  Furnace  Co.  v.  Glasscock,  82  Ala.  452,  60  Am.  Rep.  748, 
Cas.  Ag.  291. 

§  122.     Renunciation  by  agent  justified   when.— 

The  agent  may  also  lawfully  terminate  the  relation  if 
he  is  required  to  do  dishonest  or  unlawful  acts. 

II.      TERMINATION   BY  OPERATION   OF  LAW. 

§  123.  In  general. — The  authority  may  also  be  ter- 
minated in  many  cases  by  mere  operation  of  law  upon 
the  happening  of  some  event  which  makes  the  further 
continuance  of  the  agency  incompatible,  impracticable 
or  impossible.  The  most  important  of  these  events 
are: 

§  124.  Death  of  principal. — The  death  of  the  prin- 
cipal operates  to  instantly  terminate  au  authority,  not 
coupled  with  an  interest.  "The  interest  which  can 
protect  a  power  after  the  death  of  the  person  by  whom 
it  was  created  must  be  an  interest  in  the  thing  itself. 
The  power  must  be  ingrafted  upon  some  estate  or  in- 
terest in  the  thing  to  which  it  relates."  A  mere  interest 
in  commissions  or  profits  to  result  from  the  execution 
of  the  power  is  not  enough. 

See  Hunt  v.  Rousmanier,  8  Wheat.  174,  Cas.  Ag.  322;  Knapp  v. 
Alvord,  10  Paige,  205,  40  Am.  Dec.  241,  Cas.  Ag.  328;  Farmers'  Loan 
&  Trust  Co.  v.  Wilson,  139  N.  Y.  284,  34  N.  E.  Rep.  784,  36  Am.  St. 
Rep.  696;  Pacific  Bank  v.  Hannah,  90  Fed.  Rep.  72,  59  U.  S.  App. 
457,  32  C.  C.  A.  322;  Gardner  v.  First  Nat.  Bank,  10  Mont.  149,  10 
L.  R.  A.  45. 

By  the  weight  of  authority  the  rule  applies  even 
though  the  fact  of  the  death  may  not  be  known  to  the 
agent    or   to    the   third    person    with    whom   he   deals; 


$8  124-128.]  TERMINATION   OF   THE    AGENCY.  69 

though  the  harshness  of  this  rule  has  caused  it  in  some 
cases  to  be  changed  by  statute,  and  some  courts  deny 
it  so  far  as  it  would  operate  to  defeat  interests  acquired 
in  ignorance  of  the  death. 

See  Weber  v.  Bridgman,  113  N.  Y.  600,  Cas.  Ag.  331.  Contra.  See 
Cassiday  v.  McKenzie,  4  Watts  &  Serg.  (Pa.)  282,  39  Am.  Dec.  76; 
Ish  v.  Crane,  8  Ohio  St.  520,  13  id.  574;  Dick  v.  Page,  17  Mo.  2:^4; 
Deweese  v.  Muff,  57  Neb.  17,  73  Am.  St.  Rep.  488. 

§125.  Death  of  agent. — The  same  result  must  also 
ensue  from  (he  death  of  the  agent,  except  in  those  casts 
in  which  the  agent  had  an  authority  coupled  with  an 
interest. 

S 12G.  Insanity  of  principal  or  agent. — The  in- 
finity of  the  principal  or  the  agent  must  also  ordi- 
narily operate  to  terminate  an  authority  not  coupled 
with  an  interest;  saving,  usually,  the  rights  of  third 
persons  who,  in  ignorance  of  the  insanity,  have  parted 
with  things  of  value  to  which  they  can  not  be  restored. 

See  Matthiessen,  etc.,  Co.  v.  McMahon,  38  N.  J.  L.  536,  Cas.  Ag. 
335;  Sands  v.  Potter,  165  111.  397,  46  N.  E.  Rep.  2S2 ;  Drew  v.  Nunn, 
4  Q.  B.  Div.  661. 

§  127.  Bankruptcy  of  principal  or  agent. — The 
bankruptcy — not  the  mere  insolvency — of  (lie  principal 
will  also  ordinarily  terminate  an  authority  not  coupled 
with  an  interest.  The  bankruptcy  of  a  business  agent 
would  ordinarily  have  the  same  effect. 

S128.  Marriage  of  principal. — The  marriage  of 
a  woman  at  common  law  would  revoke  a  power  of  at- 
torney previously  given  by  her,  but  this  result  would 
not  ensue  under  many  of  the  modern  statutes.  But  in 
any  event  the  marriage  of  the  principal  will  terminate 
an  authority,  not  coupled  with  an  interest,  where  the 
execution  of  the  authority  would  operate  to  defeat 
rights  acquired  by  the  marriage. 

See  Henderson  v.  Ford.  46  Tex.  627;  Wambole  v.  Foot«,  2  Dak.  1. 


70  TERMINATION   OF   THE   AGENCY.  [§§  129-131. 

§  129.  War. — War  between  the  country  of  the  prin- 
cipal and  that  of  the  agent  will  suspend,  if  not  abro- 
gate, many  kinds  of  authority. 

See  Insurance  Co.  v.  Davis,  95  U.  S.  425,  Cas.  Ag.  336;  Williams 
v.  Paine,  169  U.  S.  55;  Sands  v.  Ins.  Co.,  50  N.  Y.  626,  10  Am. 
Rep.  535. 

§  130.  Destruction  of  subject  matter. — The  de- 
struction of  the  subject  matter  of  the  agency,  or  of  the 
principal's  interest  therein,  must  usually  terminate 
the  agency. 

§  131.  Termination  of  power  over  subject-mat- 
ter— Sub-agents.— And  finally  the  termination  of  the 
principal's  power  over  the  subject-matter  must  operate 
to  terminate  any  authority  derived  from  him.  For  like 
reasons,  the  termination  of  the  authority  of  the  agent 
must  also  operate  ordinarily  to  terminate  the  author- 
ity of  any  sub-agents  appointed  by  him. 


§  132.] 


NATURE  AND  EXTENT  OF  AUTHORITY. 


71 


CHAPTER  VIII. 

OF  THE  NATURE  AND  EXTENT  OF  THE  AUTHORITY. 


§  132.  Distinctions. 

133.  Express  authority. 

134.  Implied   authority. 

135.  General  authority. 

136.  Special  authority. 

137.  Appearance   given   to   au- 

thority      by      principal 
controls. 


§  138.  Distinction     between     au- 
thority and  instructions. 

139.  Extent  of  general  author- 

ity. 

140.  Known    limitations. 

141.  Extent  of  special  author- 

ity. 

142.  Incidental  powers. 


§132.  Distinctions. — It  has  been  seen  in  preced- 
ing sections  that  the  authority  of  the  agent  may  be 
conferred  expressly,  but  that  it  is  also  and  p 
more  frequently  left  to  be  inferred  from  the  words  and 
conduct  of  the  principal.  While  the  authority  may 
thus  be  conferred  in  either  way,  some  important  conse- 
quences depend  upon  whether  one  method  or  the  other 
was  adopted.  If  the  authority  is  express,  we  shall 
naturally  expect  to  find  that  its  extent,  and  the  time, 
place  and  conditions  of  its  exercise,  will  be  fully  set 
forth  and  clearly  defined;  and  if  that  be  the  case  both 
the  agent  and  third  persons  will  have  little  occasion 
for  uncertainty  or  doubt  as  to  its  extent.  If,  on  the 
other  hand,  the  authority  is  to  be  implied,  the  questions 
whether  any  authority  is  properly  to  be  implied,  and,  if 
so,  what  kind  and  how  much,  must  necessarily  be  mat- 
ters upon  which  opinions  may  differ  and  which  must 
often  remain  undetermined  until  some  competent 
authority  has  passed  upon  them. 

It  has  been  seen  also  that  authority  whether  express 
or  implied  may  be  of  a  general  character  or  may  be 
confined   within   narrow  and  particular  limits.     As  it 


72  NATURE  AND  EXTENT  OF  AUTHORITY.    [§§  132-134. 

is  the  one  or  the  other,  important  consequences  may  or 
may  not  attach. 

These  distinctions,  then,  are  to  be  kept  in  mind :  As 
respects  the  manner  of  conferring  it,  the  authority  may 
be  either  express  or  implied.  As  respects  its  extent, 
it  may  be  either  general  or  special. 

§  133.  Express  authority. — Where  the  authority  is 
express,  it  is,  as  has  been  stated,  natural  to  expect  that 
its  extent  and  the  conditions  of  its  exercise  will  be  clear- 
ly denned.  To  the  degree  to  which  this  is  true,  the  limits 
fixed  will  be  conclusive  upon  all  persons  charged  with 
notice  of  them.  No  other  main  power  can  be  deemed  to 
be  conferred  than  that  expressly  mentioned.  Persons 
dealing  with  an  agent  known  to  be  acting  under  such 
an  express  power,  are  bound  to  take  notice  of  its  limita- 
tions; and  where  they  are  dealing  with  reference  to  a 
matter  concerning  which  the  law  requires  written  au- 
thority or  authority  under  seal,  they  are  bound  to  take 
notice  of  that  fact  and  will  be  charged  with  restrictions 
contained  in  the  instrument  conferring  such  authority, 
though  they  may  have  had  no  actual  knowledge  of  them. 

See  Hurley  v.  Watson,  68  Mich.  531;  Stainback  v.  Read,  11  Gratt. 
(Va.)  281,  62  Am.  Dec.  648;  Reese  v.  Medlock,  27  Tex.  120,  84  Am. 
Dec.  €11;  Peabody  v.  Hoard,  46  111.  242;  Busch  v.  Wilcox,  82  Mich. 
336,  47  N.  W.  Rep.  328,  21  Am.  St.  Rep.  563. 

§  134 .  Implied  authority. — As  has  been  seen  in 
earlier  sections,  authority  may  often  be  implied  from 
the  words  or  conduct  of  the  principal  or  from  the  cir- 
cumstances of  the  case.  Authority,  however,  which  is 
so  implied  cannot  exceed  the  natural  and  legitimate 
effects  of  the  facts  from  which  it  is  inferred,  and  must 
be  confined  to  the  performance  of  similar  acts  under 
similar  circumstances.  It  must,  moreover,  be  inferred 
from  facts  for  which  the  principal  is  responsible,  and 


S8  134-137.]  NATURE  AND  EXTENT  OF  AUTHORITY.        73 

can  not  arise  from  mere  presumption  or  from  tbe  mere 
propriety  or  convenience  of  its  existence. 

See  Graves  v.  Horton,  38  Minn.  66,  Cas.  Ag.  82;  Bickford  v. 
Menier,  107  N.  Y.  490,  Cas.  Ag.  93;  Atkins  v.  Lewis,  108  Mass.  534. 

§  135.  General  authority. — Distinction  has  been 
made,  in  earlier  sections,  between  the  general  and  the 
special  agent,  and  the  same  general  distinction  is  made 
in  the  character  of  the  authority  conferred.  The 
authority  is  general  where  the  principal  has,  either 
pressly  or  impliedly,  held  the  agent  out  as  authorized 
to  act  generally  in  relation  to  some  subject  or  class  of 
subjects. 

See  Butler  v.  Maples,  9  Wall.  766,  Cas.  Ag.  340;  Hatch  v.  Taylor, 
10  N.  H.  538,  Cas.  Ag.  345. 

§  136.  Special  authority. — The  authority  is  special 
where  the  principal  has  expressly  or  impliedly  held  the 
agent  out  as  authorized  to  act  only  in  a  particular 
manner,  or  in  accordance  with  specific  instructions. 

See  Butler  v.  Maples,  supra;  Hatch  v.  Taylor,  supra;  Bryant  v. 
Moore,  26  Me.  84,  45  Am.  Dec%  96,  Cas.  Ag.  355. 

§  137.  Appearance  given  to  authority  by  princi- 
pal controls. — In  every  case,  persons  dealing  with  the 
agent  as  such,  are  bound  to  ascertain  the  extent  of  his 
authority;  but,  whether  the  agency  be  general  or  spe- 
cial,  the  principal  will  be  bound  to  third  persons  by  the 
authority  as  he  has  caused  it  to  appear.  He  is  not 
bound  by  appearances  which  the  agent  alone  has  given 
to  the  authority,  without  the  principal's  express  or 
implied  consent. 

See  Law  v.  Stokes,  32  N.  J.  L.  249,  90  Am.  Dec.  655;  Walsh  v. 
Hartford  F.  Ins.  Co.,  73  N.  Y.  5;  Kingsley  v.  Fitts,  51  Vt.  414;  Han- 
over Nat.  Bank  v.  American,  etc.,  Co.,  148  N.  Y.  612,  51  Am.  St.  Rep. 
721;  Wheeler  v.  McGulre,  86  Ala.  398,  2  L.  R.  A.  808,  Cas.  Ag.  862. 


7-1  NATURE  AND  EXTENT  OF  AUTHORITY.    [§§  138-139. 

§  138.  Distinction  between  authority  and  in- 
structions.— It  is  essential  to  keep  in  mind  that  author- 
ity and  the  instructions  of  the  principal  are  not  neces- 
sarily identical.  There  may,  of  course,  be  cases  wherein 
the  instructions  constitute  the  authority — where  they 
are  contemporaneous  and  coextensive  with  its  creation. 
But  this  is  not  necessarily  or  even  ordinarily  true.  The 
authority  of  the  agent  is  the  aggregate  of  the  powers 
which,  in  contemplation  of  law,  the  principal  has  con- 
ferred upon  the  agent.  It  may  consist  not  only  of  what 
the  principal  said  but  of  what  he  did  or  failed  to  do. 
Actions  often  speak  louder  than  words,  and  certainly 
the  effect  which  the  law  attributes  to  the  words  or  con- 
duct of  the  principal  cannot  be  changed  by  his  declara- 
tions or  instructions. 

Usage,  or  what  is  customary  in  similar  cases,  may 
contribute  to  determine  the  authority;  estoppel  may 
affect  it ;  subsequent  ratification  may  enter  into  it ;  ex- 
press rules  of  law  may  modify  or  enlarge  it;  and,  so 
far  as  innocent  third  persons  are  concerned,  it  is  vain 
for  the  principal  to  give  his  agent  instructions  not  to 
do  what  the  law,  as  the  result  of  all  of  these  forces,  de- 
termines that  he  is  authorized  to  do. 

Instructions,  moreover,  are  often  intended  to  be  se- 
cret. To  disclose  them  would  not  infrequently  defeat 
their  purpose.  However  proper  they  may  be,  therefore, 
as  between  the  principal  and  the  agent,  in  determining 
their  relations,  they  cannot  be  expected  to  affect  third 
persons  who  are  ignorant  of  them. 

See  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96,  Cas.  Ag.  355; 
Little  Pittsburg,  etc.,  Co.  v.  Little  Chief,  etc.,  Co.,  11  Colo.  223,  7 
Am.  St.  Rep.  226. 

§  139.  Extent  of  general  authority. — Where  au- 
thority has  been  conferred  to  act  generally  in  reference 
to  a  subject  or  class  of  subjects,  third  persons,  who 


§§  139-141.]  NATURE  AND  EXTENT  OF  AUTHORITV.         75 

have  no  notice  to  i he  contrary,  have  the  right  to  pre- 
sume that  the  agent  has  authority  to  do  whatevi  r  is 

usual  and 'proper  in  such  cases;    and  their  rights  i 
not  be  affected  by  the  fact  that  the  principal  had  giv<  ;i 
the  agent  secret  instructions  which  would  limit  this 
usual  authority. 

See  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96,  Cas.  Ag.  355; 
Towle  v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195,  Cas.  Ag.  358; 
Wheeler  v.  McGuire,  86  Ala.  398,  2  L.  R.  A.  808,  Cas.  Ag.  362;  Hub- 
bard v.  Tenbrook,  124  Pa.  St.  291,  10  Am.  St.  Rep.  585,  2  L.  R.  A. 
823,  Cas.  Ag.  367;  Watteau  v.  Fenwick,  L.  R.  1  Q.  B.  Div.  346,  Cas. 
Ag.  369;  Austrian  v.  Springer,  94  Mich.  343,  54  N.  W.  Rep.  50,  34 
Am.  St.  Rep.  350;  Wilson  v.  Commercial  Union  Assur.  Co.,  51  S. 
Car.  540,  29  S.  E.  Rep.  245,  64  Am.  St.  Rep.  700;  Ruggles  v.  Am. 
Central  Ins.  Co.,  114  N.  Y.  415,  21  N.  E.  1000,  11  Am.  St.  Rep.  674. 

§140.    Known    limitations. — What    has    thus 

been  said  about  secret  instructions  can,  of  course,  have 
no  application  to  known  limitations.  ''No  principle 
is  better  settled  in  law,  nor  is  there  any  founded  on 
more  obvious  justice,  than  that  if  a  person  dealing 
with  an  agent  knows  that  he  is  acting  under  a  circum- 
scribed and  limited  authority,  and  that  his  act  is  out- 
side of  and  transcends  the  authority  conferred,  the 
principal  is  not  bound;  and  it  is  immaterial  whether 
the  agent  is  a  general  or  a  special  one,  because  a  prin- 
cipal may  limit  the  authority  of  the  one  as  well  as  that 
of  the  other." 

See  Quinlan  v.  Providence  Ins.  Co.,  133  N.  Y.  356,  31  N.  E.  Rep. 
31,  28  Am.  St.  Rep.  645. 

§141.  Extent  of  special  authority. —  Where  the 
authority  is  special,  the  agent's  power  may  be  as  lim- 
ited as  the  principal  sees  fit  to  make  it,  and  these  limi- 
tations will  be  effective  unless  the  principal  has,  by 
conduct  or  otherwise,  held  the  agent  out  as  having  an 
authority  greater  than  that  actually  conferred. 

See  Cleveland  v.  Pearl.  63  Vt.  127.  25  Am.  St.  Rep.  748,  Cas.  Ag. 


76  NATURE  AND  EXTENT  OF  AUTHORITY.    [§§  141-142. 

?56;  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96,  Cas.  Ag.  355;  Towle 
v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195,  Cas.  Ag.  358;  Wheeler  v. 
McGuire,  86  Ala.  398,  2  L.  R.  A.  808,  Cas.  Ag.  362;  Dyer  v.  Duffy,  39 
W.  Va.  14S,  19  S.  E.  Rep.  540,  24  L.  R.  A.  339. 

§142.  Incidental  powers. — Every  delegation  of 
power,  whether  it  be  general  or  special,  carries  with  it, 
by  implication,  unless  the  contrary  is  expressed,  inci- 
dental authority  to  do  all  those  things  which  are  rea- 
sonably necessary  and  proper  to  carry  into  effect  the 
power  granted.  This  implied  power  can  not,  as  to  third 
persons,  be  cut  off  by  secret  limitations. 

See  Wheeler  v.  McGuire,  86  Ala.  398,  2  L.  R.  A.  808,  Cas.  Ag. 
362;  Austrian  v.  Springer,  94  Mich.  343,  54  N.  W.  Rep.  50,  34  Am. 
St.  Rep.  350. 


§5143-144.]    CONSTRUCTION    OF    THE    AUTHORITY. 


77 


CHArTEK  IX. 

OF  THE  CONSTRUCTION  OF  THE  AUTHORITY. 


§  143.  What    here    considered. 
1.    Of  Construction   in   General. 

144.  Necessity     for     construc- 

tion. 

145.  Necessity  for  evidence. 

146.  By      whom       construed — 

court — jury. 
147-148.  How  construed. 

2.    Of  the  Construction  of 
Particular    Powers. 

149.  What  here  included. 

150.  Authority    to    sell    land- 

when  exists. 


§  151. 

152. 


What  included. 


153. 
154. 
155. 


Authority  to  sell  personal 

property. 
What  included. 


Authority  to  buy. 
Authority  to  collect  or  re- 
ceive payment. 

156.  Authority  to   make  nego- 

tiable paper. 

157.  Authority   to  manage  busi- 

ness. 


§  143.  What  here  considered. — Having  ascer- 
tained how  authority  may  be  conferred  and  seen  some- 
thing of  the  rules  which  determine  its  nature  and 
extent,  it  becomes  material  now  to  discover  what  acts 
may  be  authorized  under  it,  and  especially  what  inci- 
dental powers  may  be  deduced  from  more  general  pow- 
ers expressly  conferred.  Attention  will,  therefore,  next 
be  given  to  the  question  of  the  construction  or  interpre- 
tation of  the  authority. — 1.  In  general,  and  2.  As  ap- 
plied to  particular  powers. 


§144. 


1.     Of  Construction  in  General. 
Necessity  for  construction. — Every  person 


who  proposes  to  deal  with  an  agent,  as  such,  must,  as 
has  been  seen,  ascertain  not  only  that  authority  exists, 
but  also  that  it  is  adequate  to  authorize  the  proposed 
act.  It  thus  becomes  necessary  to  examine  into  it,  and 
ascertain  what  is  ite  scope  and  effect — in  other  words. 


78  CONSTRUCTION    OF    THE   AUTHORITY.    [§§144-146. 

to  construe  it,  to  determine  whether  it  is  broad  enough 
to  meet  the  present  need. 

§  145.  Necessity  for  evidence. — It  is  also  true  that 
the  person  who  has  dealt  with  an  agent,  as  such,  and 
who  desires  to  enforce  the  results  against  the  principal, 
must  be  prepared  to  prove,  if  it  be  denied,  not  only  that 
there  was  some  authority,  but  also  that  there  was  such 
authority  as  justified  the  act  relied  upon.  If  it  becomes 
necessary,  therefore,  to  have  recourse  to  the  courts,  the 
plaintiff  must  be  prepared  to  prove  the  authority,  and 
to  show  that  when  properly  construed  it  justified  the 
act  doue. 

Something  as  to  the  evidence  required  has  already 
been  seen  in  an  earlier  section. 

§  146.  By  whom  construed — Court — Jury, — While 
the  party  who  deals  with  the  agent  must  usually,  in  the 
first  instance,  put  his  own  construction  upon  the  au- 
thority, he  must,  when  he  comes  into  court,  abide  by 
the  construction  which  the  law  puts  upon  it. 

It  is  the  general  rule  that  the  construction  of  writ- 
ten instruments,  and  the  determination  of  the  legal  ef- 
fect of  undisputed  facts,  are  matters  for  the  court.  If, 
therefore,  the  authority  is  created  by  written  instru- 
ment, the  writing  must  in  general  be  produced,  and 
the  nature  and  extent  of  the  authority  thereby  con- 
ferred will  be  determined  by  the  court.  So,  though  not 
in  writing,  if  the  facts  are  not  disputed,  the  court  will 
determine  their  effect;  but  if  the  facts  are  in  dispute 
it  must  usually  be  left  to  the  jury  to  determine,  under 
proper  instructions  from  the  court,  whether  there  was 
any  authority,  and,  if  so,  what  was  its  extent. 

See  Loudon  Savings  Fund  Society  v.  Hagerstown  Savings  Bank, 
36  Penn.  St.  498,  78  Am.  Dec.  300,  Cas.  Ag.  371;  Willcox  v.  Hines, 
100  Tenn.  524,  45  S.  W.  Rep.  781,  66  Am.  St.  Rep.  761. 


§§  147-148.]   CONSTRUCTION    OF    THE    AUTHORITY.  70 

§147.  How  construed. — In  determining  the  sco] 
and  extent  of  the  authority,  the  construction  adopted 
must  be  a  fair  and  reasonable  one  and  not  a  strain*  -1  or 
unnatural  one.  The  authority  is  to  be  construed  in 
the  light  of  the  surrounding  circumstances  and  with 
the  situation  of  the  parties  and  thek  evidenl  purposes 
in  view.  Thus,  for  example,  though  the  language  used 
may  be  general,  it  must  be  limited  in  its  application 
by  the  specific  purpose  to  be  accomplished,  and  must 
be  confined  in  its  operation  to  the  principal's  own  pur- 
poses and  business. 

See  Camden  Safe  Deposit  Co.  v.  Abbott,  44  N.  J.  L.  257,  Cas.  Ag. 
376. 

So  a  power  from  several  jointly  will  not  authorize 
acts  binding  one  only,  nor  will  separate  powers  from 
several  authorize  a  contract  binding  them  all  jointly. 

See  Gilbert  v.  How,  45  Mian.  121,  47  N.  W.  Rep.  643,  22  Am.  St. 
Rep.  724,  Cas.  Ag.  380;  Harris  v.  Johnston,  54  Minn.  177,  55  N.  W. 
Rep.  970,'  40  Am.  St.  Rep.  312. 

§  148.     Where    the    authority    is    conferred    by 

an  express  and  formal  instrument,  the  presumption 
is  that  the  parties  have  put  into  it  all  the  powers  in- 
tended to  be  conferred.  "A  formal  instrument  dele- 
gating  powers  is  ordinarily  subjected  to  strict  interpre- 
tation, and  the  authority  is  not  extended  beyond  that 
which  is  given  in  terms,  or  which  is  necessary  to  carry 
into  effect  that  which  is  expressly  given.  They  are 
not  subject  to  that  liberal  interpretation  which  is  given 
to  less  formal  instruments,  as  letters  of  instruction, 
etc.,  in  commercial  transactions,  which  are  interpreted 
most  strongly  against  the  writer,  especially  when  they 
are  susceptible  of  two  interpretations,  and  the  agent 
has  acted  in  good  faith  upon  one  of  such  interpreta- 
tions." 


80  CONSTRUCTION    OF    THE    AUTHORITY.    [§§148-151. 

See  Craighead  v.  Peterson,  72  N.  Y.  279,  2S  Am.  Rep.  150,  Cas. 
Ag.  373.  Powers  of  attorney  are  strictly  construed:  Hotchkiss  v. 
Middlekauf,  96  Va.  649,  32  S.  E.  Rep.  36,  43  L.  R.  A.  806;  Campbell 
v.  Foster  Home  Ass'n,  163  Pa.  St.  609,  30  Atl.  Rep.  222,  43  Am.  St. 
Rep.  818;  Frost  v.  Erath  Cattle  Co.,  81  Tex.  505,  17  S.  W.  Rep.  52, 
26  Am.  St.  Rep.  831;  Gilbert  v.  How,  45  Minn.  121,  47  N.  W.  Rep. 
643,  22  Am.  St.  Rep.  724,  Cas.  Ag.  380;  Harris  v.  Johnston,  54  Minn. 
177,  55  N.  W.  Rep.  970,  40  Am.  St.  Rep.  312. 

2.     Of  the  Construction  of  Particular  Poicers. 

§149.  What  here  included. — It  is  obviously  im- 
possible to  consider  every  kind  of  authority  which  may 
be  conferred  upon  an  agent  All  that  will  be  attempted 
will  be  to  refer  to  the  common  forms  most  frequently 
presenting  themselves. 

§  150.  Authority  to  sell  land— "When  exists. — Au- 
thority to  sell  land  must  be  clearly  conferred,  and 
usually,  as  has  been  seen  (§64)  by  written  instru- 
ment. The  power  is  not  lightly  inferred  or  easily  de- 
duced from  general  expressions,  such  as  a  power  to 
attend  to  "all  business"  or  to  do  "all  things  concern- 
ing" the  principal's  business,  and  the  like. 

See  Coquillard  v.  French,  19  Ind.  274;  Billings  v.  Morrow,  7  Cal. 
171,  68  Am.  Dec.  235;  Ashley  v.  Bird,  1  Mo.  640,  14  Am.  Dec.  313; 
Hotchkiss  v.  Middlekauf,  96  Va.  649,  32  S.  E.  Rep.  36,    43  L.  R.  A.  806. 

Merely  placing  the  property  in  the  hands  of  a  broker 
for  sale,  or  listing  it  with  a  real  estate  agent,  in  the 
ordinary  way,  does  not  amount  to  an  authority  to  sell 
or  even  to  make  a  binding  contract  to  sell.  The  only 
authority  ordinarily  deduced  in  such  cases  is  simply 
to  find  a  purchaser  to  whom  the  principal  may  sell. 

See  Duffy  v.  Hobson,  40  Cal.  240,  6  Am.  Rep.  617;  Armstrong  v. 
Lowe,  76  Cal.  616;  Stewart  v.  Pickering,  73  Iowa,  652,  35  N.  W.  Rep. 
690;  Stillman  v.  Fitzgerald,  37  Minn.  186,  33  N.  W.  Rep.  564;  Delano 
v.  Jacoby,  96  Cal.  275,  31  Am.  St.  Rep.  201. 

§  151.    What  included. — Authority  to  actually 

sell  the  principal's  land  carries  with  it,  unless  the  con- 


§§  151-152.]   CONSTRUCTION    OF    THE   AUTHORITY.  81 

trary  is  expressed,  implied  power  to  make  the  convex 
ance;  to  insert  the  usual  covenants  of  warranty;  and  to 
receive  so  much  of  the  purchase  price  as  is  to  be  paid 
('own;  but  it  does  not  authorize  a  sale  upon  credit,  or 
a  mortgage,  or  an  exchange,  or  a  dedication  to  public 
use,  or  a  conveyance  in  payment  of  the  agent's  own 
debt. 

See  Lyon  v.  Pollock,  99  U.  S.  668,  Cas.  Ag.  378;  Gilbert  v.  How, 
45  Minn.  121,  22  Am.  St.  Rep.  724,  Cas.  Ag.  380;  Leroy  v.  Beard,  8 
How.  (U.  S.)  451,  Cas.  Ag.  382;  Peters  v.  Farnsworth,  15  Vt.  155,  40 
Am.  Dec.  671,  Cas.  Ag.  387;  Lumpkin  v.  Wilson,  5  Heisk.  (Tenn.)  555, 
Cas.  Ag.  390;  Campbell  v.  Foster  Home  Ass'n,  163  Pa.  609,  30  Atl. 
Rep.  222,  43  Am.  St.  Rep.  818;  Hawxhurst  v.  Rathgeb,  119  Cal.  531, 
63  Am.  St.  Rep.  142;  Frost  v.  Cattle  Co.,  81  Tex.  505,  17  S.  W.  Rep. 
52,  26  Am.  St.  Rep.  831. 

Whether  it  will  apply  to  land  not  then  owned  by  the 
principal,  but  subsequently  acquired  by  him,  is  in  dis- 
pute. 

See  Penfield  v.  Warner,  96  Mich.  179,  35  Am.  St  Rep.  591,  and 
note. 

§  152.  Authority  to  sell  personal  property.  —  Un- 
like the  case  of  real  estate,  authority  to  sell  personal 
property  is  not  ordinarily  required  to  be  conferred  by 
written  instrument.  It  may  be  created  by  words  or 
conduct,  and  may  be  express  or  implied.  It  is  the  gen- 
eral rule  in  regard  to  chattels,  not  including  negotia- 
ble paper,  that  no  person  can  transfer  a  better  title 
than  he  himself  has.  Authority  to  sell  is  not  to  be 
inferred  from  the  mere  fact  of  possession;  but  where 
the  true  owner  has  clothed  another  not  only  with  pos- 
session but  with  the  ordinary  evidence  of  ownership, 
as  where  he  delivers  to  him  securities  endorsed  in  blank 
or  permits  the  title  to  stand  in  his  name,  he  will  be 
estopped  from  asserting  his  title  as  against  a  bona  fide 
purchaser  from  the  person  so  in  possession. 

See  Levi  v.  Booth,  58  Md.  305,  42  Am.  Rep.  332,  Cas.  Af.  Ill; 
I 


82  CONSTRUCTION    OF    THE    AUTHORITY.     [§§  152-154. 

Smith  v.  Clews,  105  N.  Y.  283,  59  Am.  Rep.  502,  Cas.  Ag.  396;  McNeil 
v.  Tenth  National  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341;  Nixon  v. 
Brown,  57  N.  H.  34. 

§  153.    "What    included.  —  Authority    to    sell 

personal  property  carries  with  it,  unless  the  contrary  is 
declared,  implied  power  to  agree  upon  the  terms  and 
conditions  of  the  sale;  to  warrant  the  principal's  title; 
to  give  warranties  of  quality  if  such  property  is  usually 
sold  with  such  a  warranty;  and  to  receive  so  much  of 
the  price  as  is  to  be  paid  at  the  time  of  the  sale. 

See  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45; 
Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682;  Pickert  v.  Marston, 
68  Wis.  465,  60  A.  Rep.  876,  Cas.  Ag.  411;  Bierman  v.  City  Mills  Co., 
151  N.  Y.  482,  45  N.  E.  Rep.  856,  56  Am.  St.  Rep.  635;  Court  v. 
Snyder,  2  Ind.  App.  440,  28  N.  E.  Rep.  718,  50  Am.  St.  Rep.  247. 

But  no  implied  power  exists  to  afterwards  collect 
the  remainder  of  the  price;  or  to  give  credit  unless  that 
is  usual;  or  to  exchange  the  property  for  other  prop- 
erty, or  to  mortgage  or  pledge  the  property;  or  to  apply 
it  to  the  agent's  own  use;  or  to  make  any  other  unusual 
contract. 

See  McKindly  v.  Dunham,  55  Wis.  515,  42  A.  Rep.  740,  Cas.  Ag. 
399;  Hibbard  v.  Peek,  75  Wis.  619,  Cas.  Ag.  403;  Billings  v.  Mason, 
SO  Me.  496,  Cas.  Ag.  406;  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am. 
Rep.  516,  Cas.  Ag.  408;  Kane  v.  Barstow,  42  Kan.  465,  16  Am.  St. 
Rep.  400;  Edwards  v.  Dillon,  147  111.  14,  35  N.  E.  Rep.  135,  37  Am. 
St.  Rep.  199. 

An  agent  authorized  to  sell  goods  and  who  has  made 
a  sale  has  thereby  ordinarily  no  authority  to  after- 
wards rescind  the  sale  or  agree  to  take  back  the  goods. 

See  Diversy  v.  Kellogg,  44  111.  114,  92  Am.  Dec.  154;  Adrian  v. 
Lane,  13  S.  C.  183.  As  to  power  of  agent  for  sale  of  agricultural 
implements  to  alter  the  contract  made  by  him,  see  Bannon  v.  Ault- 
man,  80  Wis.  307,  49  N.  W.  Rep.  967,  27  Am.  St.  Rep.  37;  Peterson 
v.  Wood,  M.  &  R.  Co.,  97  Iowa  148,  66  N.  W.  Rep.  96,  59  Am.  St.  Rep. 
399. 

§154.  Authority  to  buy. — An  agent  authorized  I  o 
buy  goods  for  his  principal  has  implied  power  to  buy  on 


§§154-155.]   CONSTRUCTION    OF    THE    AUTHORITY.  S3 

credit  if  not  Bupplied  with  funds,  and  may  make  repre- 
sentations as  to  his  principal's  credit  for  that  purpc 
Unless  the  contrary  is  declared  lie  may  agree  upon  I 
price  and  terms  of  sale  within  the  limit  of  what  is 
usual  or  reasonable.  He  must  not  exceed  limits  openly 
fixed  as  to  the  kind  or  amount,  and  he  has  no  implied 
power  to  make  negotiable  paper  for  the  price 

See  Wheeler  v.  McGuire,  86  Ala.  398,  2  L.  R.  A.  808,  Cas.  Ag.  362; 
Komorowski  v.  Krumdick,  56  Wis.  23,  Cas.  Ag.  413;  Hubbard  v. 
Tenbrook,  124  Penn.  291,  10  Am.  St.  Rep.  585,  2  L.  R.  A.  823,  Cas.  Ag. 
367;  White  v.  Cooper,  3  Penn.  St.  130. 

§  155.  Authority  to  collect  or  receive  payment.— 
An  agent  authorized  to  collect  can  receive  nothing  but 
money  in  payment.  He  has  no  implied  authority  to  re- 
lease or  compromise  the  debt,  or  to  extend  the  time,  or 
to  receive  payment  before  it  is  due. 

See  Cram  v.  Sickel,  51  Neb.  828,  66  Am.  St.  Rep.  478;  Herring 
v.  Hottendorf,  74  N.  C.  588;  McHany  v.  Schenck,  88  111.  357;  Law- 
rence v.  Johnson,  64  111.  351;  Smith  v.  Kidd,  68  N.  Y.  130,  23  Am. 
Rep.  157. 

Authority  to  receive  payment  is  not  implied  merely 
from  the  fact  that  the  agent  sold  the  goods  for  which 
the  money  is  due,  or  negotiated  the  contract  or  loan 
upon  which  it  is  payable.  In  the  latter  case  the  fact 
that  the  securities,  as  for  example  the  bond  and  mort- 
gage, are  left  in  the  possession  of  the  agent  who  nego- 
tiated the  loan,  will  justify  an  inference  of  authority 
to  receive  payments  upon  them,  but  the  party  paying 
must  see  at  his  peril  that  the  securities  are  in  the  pos- 
session of  the  agent  on  each  occasion  when  he  pays. 

Thus  a  traveling  salesman,  or  "drummer,"  authorized  to  solicit 
orders  for  goods  to  be  sent  by  his  principal,  and  who  takes  such  an 
order  for  goods  which  are  so  supplied,  has  thereby  no  implied  power 
to  subsequently  collect  payment  for  them.  McKindly  v.  Dunham, 
55  Wis.  515,  42  Am.  Rep.  740,  Cas.  Ag.  399;  Janney  v.  Boyd,  30  Minn. 
319;  Butler  v.  Donnan,  68  Mo.  298.  30  Am.  Rep.  795;  Simon  v.  John- 


S4  CONSTRUCTION    OF    THE    AUTHORITY.    [§§  155-157. 

son,  105  Ala.  344,  16  So.  Rep.  884,  53  Am.  St.  Rep.  125;  Kornemann 
v.  Monaghan,  24  Mich.  36.  As  to  the  implied  authority  of  a  loan 
agent  to  receive  payment,  see  Crane  v.  Gruenewald,  120  N.  Y.  274, 
Cas.  Ag.  87;  Smith  v.  Kidd,  68  N.  Y.  130,  23  Am.  Rep.  157;  Double- 
day  v.  Kress,  50  N.  Y.  410,  10  Am.  Rep.  502;  Security  Co.  v.  Graybeal, 
85  Iowa  543,  52  N.  W.  Rep.  497,  39  Am.  St.  Rep.  311. 

§  156.  Authority  to  make  negotiable  paper. — Au- 
thority to  make  or  endorse  negotiable  paper  is  not  to  be 
lightly  inferred.  It  can  be  implied  only  when  abso- 
lutely necessary  to  the  execution  of  the  main  power. 
And  when  expressly  conferred  it  is  subject  to  a  very 
strict  construction,  and  the  agent  can  bind  the  princi- 
pal only  when  he  has  acted  within  the  precise  limits  of 
his  authority. 

See  Jackson  v.  Bank,  92  Tenn.  154,  18  L.  R.  A.  663,  Cas.  Ag.  415; 
Pickle  v.  Muse,  88  Tenn.  380,  17  Am.  St.  Rep.  900;  King  v.  Sparks, 
17  Ca.  285,  4  Am.  St.  Rep.  85,  Cas.  Ag.  418;  Helena  Nat'l  Bank  v. 
Rocky  Mt.  Tel.  Co.,  20  Mont.  379,  63  Am.  St.  Rep.  628. 

§  157.  Authority  to  manage  business. — Authority 
to  manage  the  principal's  business  does  not  imply  power 
to  make  negotiable  paper;  or  to  sell  the  business;  or  to 
borrow  money  unless  absolutely  necessary;  or  to  pledge 
or  mortgage  the  principal's  property;  or  to  make  any 
contract  not  within  the  usual  scope  of  the  business. 

See  Brockway  v.  Mullin,  46  N.  J.  L.  448,  50  Am.  Rep.  442,  Cas.  Ag. 
419;  Vescelius  v.  Martin,  11  Colo.  391,  Cas.  Ag.  422;  New  York  Mine 
v.  Bank,  39  Mich.  644,  Cas.  Ag.  423;  Helena  Nat.  Bank  v.  Rocky  Mt. 
Tel  Co.  supra;  Glidden  &  Joy  Co.  v.  Nat.  Bank,  16  C.  C.  A.,  534,  32 
U.  S.  App.  654,  69  Fed.  Rep.  912. 


. 


fY/sff 


§8158-159.]       EXECUTION    OF    THE    AUTHORITY. 


CHAPTER  X. 

OF  THE  EXECUTION  OF  THE  AUTHORITY. 


i  158.  In  general. 

159.  Excessive  or  defective  ex- 

ecution. 

160.  Execution   of   written   in- 

struments. 

161.  Execution    of    sealed    in- 

struments. 


§  1C2.  Execution  of  negotiable 
instruments. 

163.  Execution  of  simple  con- 
tracts. 

1G4.  Parol  evidence  to  explain. 


§  158.  In  general. — It  is  the  general  duty  of  the 
agent  to  execute  the  authority  in  the  name,  and  for  the 
benefit  of  the  principal,  and  to  confine  his  acts  within 
the  scope  of  the  authority  conferred  upon  him. 

It  is  also  especially  to  the  interest  of  the  agent  to  so 
execute  the  authority  as  to  bind  the  principal  and  not 
himself. 

§  159.  Excessive  or  defective  execution. — The  exe- 
cution of  the  authority  in  a  given  case  may  fail  either 
because  the  agent  has  neglected  to  fully  exercise  his 
authority,  or  because  he  has  exceeded  it.  A  deficient 
execution  will  ordinarily  not  bind  the  principal,  though 
it  may  so  operate  as  to  bind  the  agent  personally.  An 
excessive  execution  will  not  necessarily  be  defective. 
If  there  has  been  a  complete  execution  of  the  power 
and  the  excess  can  be  distinguished  and  disregarded, 
the  authorized  portion  may  be  given  effect. 

See  Thomas  v.  Joslin,  30  Minn.  388,  Cas.  Ag.  427. 

The  execution  of  the  authority  may  also  fail  because 
the  agent  has  attempted  something  wholly  beyond  the 
power  conferred,  or  has  undertaken  to  do  that  which 
a  proper  construction  of  his  authority  will  not  justify. 


86  EXECUTION    OF    THE    AUTHORITY.        [§§  159-160. 

Thus  a  power  from  two  jointly  to  deal  with  their 
joint  interests  will  not  justify  dealing  with  the  sep- 
arate interests  of  one  only;  and,  conversely,  a  power 
from  several  to  deal  with  their  separate  interests  will 
not  justify  a  contract  which  assumes  to  bind  them 
jointly. 

See  Gilbert  v.  How,  45  Minn.  121,  47  N.  W.  Rep.  643,  22  Am.  St. 
Rep.  724,  Cas.  Ag.  380;  Harris  v.  Johnston,  54  Minn.  177,  40  Am.  St. 
Rep.  312. 

§  160.    Execution  of  written  instruments.— It  is  in 

the  execution  of  written  instruments  that  question  is 
most  likely  to  arise,  because  they  show  on  their  face 
precisely  what  was  done  and  are  less  open  to  explana- 
tion by  the  surrounding  circumstances.  It  may  often 
happen,  therefore,  that  the  agent  may,  through  inad- 
vertence, ignorance  or  mistake,  so  execute  as  to  bind 
his  principal,  or  himself,  or  no  one,  even  when  his  desire 
and  intention  were  to  bind  the  principal. 

To  bind  the  principal,  the  instrument  should  be  made 
in  the  name  of  the  principal  and  not  in  the  name  of  the 
agent ;  the  promises  or  undertakings  should  be  made  in 
the  name  of  the  principal ;  and  the  signature  should  be 
that  of  the  principal,  though  affixed  by  the  hand  of  the 
agent. 

If  William  White  is  principal  and  Benjamin  Black 
is  the  agent,  the  proper  signature  would  be:  William 
White,  by  Benjamin  Black,  his  agent,  (or,  his  attorney 
in  fact).  The  words  his  agent  or  his  attorney  in  fact, 
though  proper  and  desirable,  might  be  omitted  without 
destroying  the  effect. 

On  the  other  hand,  to  sign  thus:  Benjamin  Black, 
Agent,  is  clearly  insufficient  to  bind  the  principal,  but 
would  ordinarily  bind  the  agent.  So  of  a  signature 
thus:  Benjamin  Black,  Agent  of  William  White.  Here 
the  word  agent,  or  Agent  of  William  White,  simply 
serves  to  show  who  Benjamin  Black  is ;  they  are  simply 


§§160-162.]       EXECUTION    OF    THE    AUTHORITY  87 

descriptio  personae.  To  sign  Benjamin  Black,  Agent 
for  William  White ,  is  also  usually  regarded  as  insuffi- 
cient to  bind  William  While,  and  for  the  same  reason. 

See  Hobson  v.  Hassett,  76  Cal.  203,  9  Am.  St.  Rep.  103,  Cas.  Ag. 
442;  Stinson  v.  Lee,  GS  Miss.  113,  8  So.  Rep.  272,  9  L.  R.  A.  830, 
Western  Publishing  House  v.  Murdick,  4  S.  Dak.  207,  56  N.  W.  Rep. 
120,  21  L.  R.  A.   671. 

§  101.  Execution  of  sealed  instruments. — The  same 
general  considerations  apply  with  added  force  to  in- 
struments under  seal,  because,  of  all  kinds  of  contracts 
in  writing,  those  under  seal  are  most  inflexible  and 
least  open  to  explanation  by  outside  circumstances. 
To  bind  the  principal  upon  instruments  under  seal,  the 
instrument  must  be  so  executed  as  to  show  upon  its  face 
that  it  is  the  deed  of  the  principal ;  that  the  covenants 
are  his;  that  he  makes  the  grants;  and  that  the  signa- 
ture and  seal  are  his,  though  affixed  by  the  agent.  If 
the  grants  and  covenants  are  those  of  the  agent,  the 
mere  fact  that  he  describes  himself  as  "agent"  will  not 
relieve  him  from  personal  liability,  or  make  the  act 
the  principal's. 

See  McClure  v.  Herring,  70  Mo.  18,  35  Am.  Dec.  404,  Cas.  Ag.  429; 
Elwell  v.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126;  Shanks  v.  Lancaster,  5 
Gratt.  (Va.)  110,  50  Am.  Dec.  108;  Knight  v.  Clark,  48  N.  J.  L.  22, 
57  Am.  Rep.  534,  Cas.  Ag.  434. 

§  162.  Execution  of  negotiable  instruments. — Ne- 
gotiable instruments,  such  as  promissory  notes  and  bills 
of  exchange,  occupy  a  peculiar  place  in  our  law.  They 
are  instruments  of  commerce  and  are  designed  to  cir- 
culate freely  in  the  transaction  of  business.  It  is  highly 
important  that  they  shall  be  clear,  definite  and  unam- 
biguous, and  shall  show  upon  their  face  who  are  the 
parties  upon  whose  responsibility  they  rely.  In  the 
execution  of  negotiable  paper,  therefore,  the  rule  is 
very  strict  that  in  order  to  bind  the  principal  the  paper 

9 


S8  EXECUTION    OF    THE    AUTHORITY.       [§§162-164. 

shall  show  upon  its  face  who  the  principal  is,  that  it  is 
his  promise,  and  that  the  signature  is  his,  though  made 
by  the  hand  of  his  agent.  It  is  not  sufficient  that  the 
principal  be  named  in  the  body  of  the  instrument  only 
unless  it  also  appears  that  the  promise  is  his  and  that 
the  agent  signs  for  him.  Where  no  principal  is  thus 
named,  the  agent  will  be  personally  liable  although  he 
signs  as  "agent.'' 

See  Hobson  v.  Hassett,  76  Gal.  203,  9  Am.  St.  Rep.  193,  Cas.  Ag. 
442;  Reeve  v.  Bank,  54  N.  J.  L.  208,  16  L.  R.  A.  143,  Cas.  Ag.  446; 
Liebscher  v.  Kraus,  74  Wis.  387,  17  Am.  St.  Rep.  171,  5  L.  R.  A.  496, 
Cas.  Ag.  448;  Stinson  v.  Lee,  68  Miss.  113,  8  So.  Rep.  272,  9  L.  R.  A. 
830;  Miller  v.  Roach,  150  Mass.  140,  22  N.  E.  Rep.  634,  6  L.  R.  A.  71; 
Mathews  v.  Dubuque  Mattress  Co.,  87  Iowa  246,  54  N.  W.  Rep.,  225, 
19  L.  R.  A.  676;  McKensey  v.  Edwards,  88  Ky.  272,  10  S.  W.  Rep. 
815,  3  L.  R.  A.  397;  McCandless  v.  Belle  Plaine  Canning  Co.,  78  Iowa 
161,  42  N.  W.  Rep.  635,  16  Am.  St.  Rep.  429,  4  L.  R.  A.  396. 

§  163.     Execution  of  other  simple  contracts. — In 

the  case  of  other  written  contracts,  the  peculiar  rules 
applicable  to  sealed  instruments  and  negotiable  paper 
do  not  apply;  and  while  it  is  true  that  parol  evidence 
can  not  be  admitted  to  contradict  or  alter  the  writing, 
more  regard  is  paid  to  the  intention  of  the  parties,  and 
if  that  is  clear,  and  can  be  given  effect  consistently 
with  the  terms  of  the  instrument,  it  will  usually  con- 
trol. 

See  Whitney  v.  Wyman,  101  U.  S.  392,  2  Myer's  Fed.  Dec.  170,  Cas. 
Ag.  452;  Brown  v.  Bradlee,  156  Mass.  28,  32  Am.  St.  Rep.  430,*  15 
L.  R.  A.  509,  Cas.  Ag.  454. 

§164.  Parol  evidence  to  explain. — In  attempting 
to  determine  the  liability  of  the  parties  to  an  instru- 
ment in  writing  executed  by  an  agent,  the  question 
constantly  arises  whether  parol  evidence  may  be  re- 
ceived to  show  who  was  intended  to  be  the  party  bound. 
Upon  tli is  question  the  cases  seem  to  be  in  hopeless  con- 
flict.    Something  depends  upon  the  nature  of  the  con- 


§  164. j  EXECUTION    OF    THE    AUTHORITY.  SO 

tract.  In  the  case  of  instruments  under  seal,  the  rule 
is  that  only  those  appearing  on  the  face  of  the  instru- 
ment as  the  parties  to  it  can  be  bound,  or  can  enforce 
the  contract. 

See  Briggs  v.  Partridge,  64  N.  Y.  357,  21  Am.  Rep.  617,  Cas.  Ag. 
436. 

In  the  case  of  negotiable  instruments  also  strict  rules 
are  usually  applied.  If  the  promise  is  clearly  the  prom- 
ise of  the  principal  or  of  the  agent,  it  cannot  be  altered. 
Parol  evidence  is  admissible  only  when  the  paper  is 
ambiguous — when,  for  example,  some  portions  of  it  look 
like  the  promise  of  the  principal  and  other  portions  of 
it  look  like  the  promise  of  the  agent — and  when  the 
action,  is  between  the  original  parties,  or  those  who, 
from  the  ambiguity  or  otherwise,  are  charged  with 
actual  or  constructive  notice  of  the  true  intention. 

See  Liebscher  v.  Kraus,  74  Wis.  387,  17  Am.  St.  Rep.  171,  5  L.  R. 
A.  496;  Keidan  v.  Winegar,  95  Mich.  430,  54  N.  W.  Rep.  901,  20  L.  R. 
A.  705;  Sparks  v.  Despatch  Transfer  Co.,  104  Mo.  531,  15  S.  W.  Rep. 
417,  12  L.  R.  A.  714;  Society  of  Shakers  v.  Watson,  68  Fed.  Rep.  730, 
15  C.  C.  A.  632;  McCandless  v.  Belle  Plaine  Canning  Co.,  78  Iowa 
161,  42  N.  W.  Rep.  635,  16  Am.  St.  Rep.  429,  4  L.  R.  A.  396;  Peterson 
v.  Homan,  44  Minn.  166,  46  N.  W.  Rep.  303,  20  Am.  St.  Rep.  564; 
Heffron  v.  Pollard,  73  Tex.  96,  15  Am.  St.  Rep.  764. 

In  the  case  of  other  written  contracts,  the  rule  goes 
further  and  it  may  not  only  be  shown  in  a  doubtful  cas,' 
who  was  the  person  intended  to  be  bound;  but  even 
where  the  promise  on  its  face  is  clearly  that  of  the 
agent,  parol  evidence  is  admissible  to  charge  an  un- 
named principal — that  is,  to  show  that  he  also  is  liable 
— though,  not  to  discharge  the  agent.  In  such  a  case 
the  other  party  may  hold  either  the  principal  or  the 
agent  at  his  option. 

See  Higgins  v.  Senior,  8  Mees.  &  Wels.  834,  Cas.  Ag.  456;  Hunt- 
ington v.  Knox,  7  Cush.  371,  Cas.  Ag.  587;  Jones  v.  Williams,  139 
Mo.  1,  39  S.  W.  Rep.  486,  61  Am.  St.  Rep.  436;  Bulwinkle  v.  Cramer, 
27  S.  Car.  376,  13  Am.  St.  Rep.  645. 


90 


DUTIES    OF    AGENT    TO    PRINCIPAL.      [§§165-166. 


CHAPTEK  XI. 

OF  THE   DUTIES  OF  THE  AGENT  TO   THE  PRINCIPAL, 


5.  In  general. 

1.     To   Be   Loyal   to   His 
Trust. 
166.  In  general. 

167.*  Incapacity  resulting — Can- 
not be  agent  of  both, 
parties. 

168.  —  Cannot  deal  with  him- 

self. 

169.  Voidability      of     transac- 

tions. 

170.  Further  limitations. 

171.  Usage  does  not  alter  rule. 
2.     To   Obey    Instructions. 

172.  Agent  must  obey  instruc- 

tions. 

173.  Good    faith,    etc.— no    ex- 

cuse. 

174.  In    what    form    of    action 

liable. 

175.  Sudden  emergency  as  ex- 

cuse. 

176.  Ambiguous  instructions. 

177.  Effect  of  custom. 

3.    To  Exercise  Care. 


§  178.  Duty  to  exercise  care. 

179.  Special    skill    required    in 

some  cases. 

180.  How  when  services  gratu- 

itous. 

181.  Negligence      in      loaning 

money. 

182.  Negligence  in  insuring. 

183.  Negligence  in  collecting. 

184.  Liability  for    defaults    of 

cprrespondents. 
4.     To  Account  for  Money 
and  Property. 

185.  Duty  to  accounts. 

186.  Cannot     deny     principal's 

title,  etc. 

187.  Duty  to  give  notice  of  col- 

lection. 

188.  Agent  must  not  mix  prin- 

cipal's   funds    with    his 
own. 
5.     To  Give  Notice  to  His 
Principal. 

189.  Duty  to  give  notice. 


§  165.  In  general. — It  is  not  possible  to  consider 
here  every  possible  duty  which  the  agent  may  owe  to  his 
principal,  but  the  most  important  duties  may  be  briefly 
dealt  with,  and  the  principles  given  will  suggest  the 
rules  which  will  govern  other  cases. 

1.     To  he  Loyal  to  his  Trust. 

§  1G6.  In  general. — It  is  the  duty  of  the  agent  to 
conduct  himself  with  the  utmost  loyalty  and  fidelity  to 
the  interests  of  his  principal,  and  not  to  place  himself 

■      _ 


§5166-167.]      DUTIES    OF    AGENT    TO    PRINCIPAL.  01 

or  permit  himself  to  be  placed  in  a  position  where  hii 
own  interests  may  conflict  with  the  interests  of  his 
principal. 

When  the  principal  employs  an  agent,  the  law  pre- 
sumes that  he  does  so  in  order  to  secure  to  himself  the 
benefits  of  the  agent's  skill,  experience  or  discretion  and 
to  reap  the  fruits  of  the  performance  of  the  undertak- 
ing. The  law  presumes  that  he  expects — and  it  gives 
him  the  right  to  expect — that  the  agent  so  employed 
will  endeavor  to  further  the  principal's  interests  and 
will  use  his  powers  for  the  principal's  benefit.  If,  then, 
instead  of  serving  the  principal,  the  agent  is  seeking 
to  serve  himself,  or  some  other  person — if,  instead 
of  promoting  his  principal's  interests,  the  agent  is  en- 
deavoring to  promote  his  own  or  some  other  person's 
interest  at  the  expense  of  the  principal's — the  funda- 
mental considerations  underlying  the  existence  of  the 
relation  will  be  defeated.  This  the  law  constantly  aims 
to  prevent 

The  rule,  however,  is  one  based  upon  the  presumed 
intention  of  the  principal  and  is  designed  to  protect 
his  interests.  The  principal  may  therefore  waive  the 
benefit  of  the  rule  if  he  does  so  with  full  knowledge  of 
the  facts.  In  the  absence  of  such  a  waiver,  the  rule  is 
absolute. 

See  Levy  v.  Spencer,  18  Colo.  532,  36  Am.  St.  Rep.  303;  Hofflin  v. 
Moss,  67  Fed.  Rep.  440,  32  U.  S.  App.  200,  14  C.  C.  A.  459;  Ramspeck 
v.  Pattillo,  104  Ga.  772,  30  S.  E.  Rep.  962.  69  Am.  St.  Rep.  197;  Wild- 
berger  v.  Hartford  Fire  Ins.  Co.,  72  Mias.  338,  17  So.  Rep.  282,  48 
Am.  St.  Rep.  558. 

§167.  Incapacity  resulting — Cannot  be  agent 
of  both  parties.  — In  order  to  secure  the  perform- 
ance of  this  duty  of  the  agent  and  to  remove  as  far  as 
possible  all  temptation  and  opportunity  to  violate  it, 
the  law  positively  forbids  the  agent's  doing  many  act* 


92  DUTIES    OF    AGENT    TO    PRINCIPAL.  [§167. 

which  might  otherwise  he  harmless.  Thus,  as  has  been 
already  seen,  the  law  does  not  ordinarily  permit  a  per- 
son to  assume  to  become  an  agent  where  he  already 
has  in  the  same  transaction  such  an  interest,  either  of 
his  own  or  as  agent  for  some  other  person,  as  may  pre- 
vent his  acting  fairly  toward  his  principal.  The  law 
recognizes  that  "no  man  can  serve  two  masters"  and 
give  to  each  of  them  his  undivided  allegiance  and  sup- 
port. 

Where,  however,  the  principal  is  fully  advised  of  the 
adverse  interest,  and  is  given  an  opportunity  to  protect 
himself  and  to  refuse  to  be  represented  by  an  agent 
who  can  not  give  him  undivided  attention,  and  he  still 
is  willing  to  employ  the  agent,  he  may  do  so ;  and  if  he 
does,  the  law  holds  that  he  has  waived  the  benefit  of  the 
rule. 

Except  with  the  full  knowledge  and  consent  of  both 
principals,  therefore,  a  person  who  is  already  agent 
of  one  party  cannot  undertake  to  act  as  agent  of  the 
other  also.  If  he  does  do  so,  it  is  not  only  a  breach  of 
his  duty,  for  which  he  is  liable,  but  any  transactions 
entered  into  by  the  agent  may  be  repudiated  by  the 
principal  who  was  ignorant  of  his  dual  agency.  As  has 
been  already  seen,  it  is  not  necessary  to  prove  actual 
fraud:  the  undertaking  to  represent  both  parties  is  in 
itself  a  fraud  upon  the  principal's  rights. 

See  Carr  v.  National  Bank  and  Loan  Co.,  167  N.  Y.  375,  60  N.  E. 
Rep.  649,  82  Am.  St.  Rep.  725;  New  York  Cent.  Ins.  Co.  v.  National 
Ins.  Co.,  14  N.  Y.  85;  Mercantile  Ins.  Co.  v.  Hope  Ins.  Co.,  8  Mo. 
App.  408;  Herman  v.  Martineau,  1  Wis.  151,  60  Am.  Dec.  368. 

No  compensation  can  be  recovered  by  an  agent  who 
has  thus  been  secretly  in  the  employment  of  the  other 
party. 

See  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  Cas.  Ag.  12; 
Atlee  v.  Fink,  75  Mo.  100,  42  Am.  Rep.  385,  Cas.  Ag.  14;   Rice  v. 


V 


§§167-169.]      DUTIES    OF    AGENT    TO    PRINCIPAL.  93 

Davis,  136  Pa.  439,  20  Atl.  Rep.  513,  20  Am.  St  Rep.  931;  Barry  v. 
Schmidt,  57  "Wis.  172,  46  Am.  Rep.  35. 

§  108.     Cannot  deal  with  himself. — The  saine 

considerations  apply  where  the  agent  is  also  secretly 
acting  in  the  same  transaction  on  his  own  account. 
Except  with  the  full  knowledge  and  consent  of  his 
principal,  an  agent  authorized  to  buy  for  his  principal 
cannot  buy  of  himself;  an  agent  authorized  to  sell  can- 
not sell  to  himself;  an  agent  authorized  to  buy  or  sell 
for  his  principal  cannot  buy  or  sell  for  himself;  nor  can 
an  agent  take  advantage  of  the  knowledge  acquired  of 
his  principal's  business  to  make  profit  for  himself  at 
his  principal's  expense. 

The  same  rule  applies  to  leases,  and  other  similar 
transactions. 

See  People  v.  Township  Board,  11  Mich.  222,  Cas.  Ag.  459;  Davis 
v.  Hamlin,  108  111.  39,  48  Am.  Rep.  541,  Cas.  Ag.  461;  Vallette  v. 
Tedens,  122  111.  607,  3  Am.  St.  Rep.  502;  Grumley  v.  Webb,  44  Mo. 
444,  100  Am.  Dec.  304. 

And  what  the  agent  cannot  do  directly,  he  cannot  do 
indirectly,  as  by  buying,  selling,  or  dealing  in  the  name 
of  another,  but  really  for  himself. 

See  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192,  Cas.  Ag. 
465;  Hull  v.  Chaffin,  54  Fed.  Rep.  437,  12  U.  S.  App.  206,  4  C.  C.  A. 
414. 

§  169.  Voidability  of  transactions. — In  all  these 
cases,  the  transaction  is  voidable  at  the  election  of  the 
principal.  It  makes  no  difference  that  the  principal 
has  not  been  injured,  or  that  the  agent  has  given  him  as 
good  terms  as  anybody  would,  or  even  better  terms,  or 
that  the  sale  or  purchase  has  been  at  the  price  fixed  by 
the  principal;  or  that  there  was  no  bad  faith  or  inten- 
tion to  defraud ;  it  is  still  voidable  at  the  option  of  the 
principal. 

See  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192,  Cas.  Ag. 


Ouu^djJ.  £-^.-o<--^^C— . 


• 


$4  DUTIES    OF    AGENT    TO    PRINCIPAL.      [§§  169-172. 

466;    Greenfield  Savinga  Bank  v.   Simons,  133  Mass.  415,  Cas.  Ag. 
476;  Rochester  v.  Leyering,  104  Ind.  562,  Cas.  Ag.  478 

§  170.  Further  limitations. — For  like  reasons,  an 
agent  authorized  to  settle  or  compromise  a  claim 
against  his  principal  cannot  buy  it  and  enforce  it  him- 
self; nor  will  an  agent  charged,  for  example,  with  the 
duty  of  paying  taxes,  removing  incumbrances,  and  the 
like,  be  permitted,  by  neglecting  his  duty,  to  allow  liens 
or  claims  against  his  principal  to  accumulate,  and  then 
buy  or  acquire  the  liens  or  claims  for  himself.  The 
agent  in  such  a  case  will  be  deemed  to  hold  in  trust  for 
the  principal. 

See  Noyes  v.  Landon,  59  Vt.  569;  Bowman  v.  Officer,  53  Iowa, 
640. 

If  the  agent  in  discharging  his  duty  gets  a  good  bar- 
gain or  makes  profits,  the  profit  belongs  to  the  princi- 
pal, who  can  compel  a  transfer  to  himself. 

See  Hegenmyer  v.  Marks,  37  Minn.  6,  5  Am.  St.  Rep.  808;  Leach 
v.  Railroad  Co.,  86  Mo.  27,  56  Am.  Rep.  408,  Cas.  Ag.  480;  Kramer 
v.  Winslow,  130  Pa.  484,  18  Atl.  Rep.  923,  17  Am.  St.  Rep.  782; 
Simons  v.  Vulcan  Oil  Co.,  61  Pa.  202,  100  Am.  Dec.  628. 

§  171.  Usage  does  not  alter  rule. — The  rule  which 
forbids  the  agent's  dealing  with  himself  or  taking  ad- 
vantage of  his  position  to  make  profit  for  himself  at 
the  expense  of  his  principal,  cannot  be  defeated  by  any 
local  or  temporary  usage,  nor  does  it  make  any  differ- 
ence that  the  agent  was  acting  without  pay. 

Se«  Robinson  v.  Mollett,  L.  R.  7  H.  of  L.  802,  14  Moak's  Eng.  Rep. 
177;  Merchants'  Ins.  Co.  v.  Prince,  50  Minn.  53,  52  N.  W.  Rep.  131, 
36  Am.  St.  Rep.  626;  Hunsaker  v.  Sturgia,  29  Cal.  142. 

2.     To  Obey  Instructions. 

§  172.  Agent  must  obey  instructions. — It  is  the 
duty.of  the  agent  to  obey  the  lawful  instructions  of  his 
principal;  and  if  he  disobeys  them,  without  sufficient 


§§172-175.]      DUTIES    OF    AGENT    TO    PRINCIPAL.  96 

excuse,  he  is  liable  to  the  principal  for  any  loss  which 
he  may  thereby  proximately  sustain. 

See  Whitney  v.  Express  Co.,  104  Mass.  152,  6  Am.  Rep.  207,  Car 
Ag.  484;  Galigher  t.  Jones,  129  U.  S.  193,  32  L.  ed.  658. 

§  173.  Good  faith,  etc.,  no  excuse. — The  fact  that 
{lie  agent,  in  disobeying  the  instructions,  acted  in  good 
faith,  or  intended  to  benefit  the  principal,  is  no  de- 
fense; nor  is  the  fact  that  he  was  not  to  be  paid  for  his 
services,  if  he  has  actually  entered  upon  the  perform- 
ance of  his  undertaking.  If  he  has  not  so  entered 
upon  its  performance,  then  a  want  of  consideration 
would  be  a  good  defense  for  not  undertaking  the  per- 
formance. 

See  Passano  v.  Acosta,  4  La.  26,  23  Am.  Dec.  470,  Cas.  Ag.  490; 
Nixon  t.  Bogin,  26  S.  C.  611,  Cas.  Ag.  492;  Thorne  v.  Deas,  4  Johns. 
(N.  Y.)    84. 

§  174.  In  what  form  of  action  liable. — If  the 
agent's  breach  of  instructions  relates  merely  to  the 
manner  of  doing  the  act,  that  is,  if  he  does  not  do  it 
when  or  as  he  was  directed,  then  the  principal's  action 
against  him  will  be  an  action  on  the  ease  for  damages; 
but  if  the  agent's  default  has  consisted  in  the  disposi- 
tion of  property  in  a  way  or  for  a  purpose  not  author- 
ized, he  is  liable  to  the  principal  in  an  action  of  trover 
for  a  conversion. 

See  Laverty  v.  Snethen,  68  N.  Y.  522,  23  Am.  Rep.  184,  Cas.  Ag. 
486. 

§  175.  Sudden  emergency  as  excuse. — A  departure 
from  instructions  may  be  justified  by  a  sudden  emer- 
gency not  caused  by  the  agent's  fault,  where  there  is  no 
time  to  communicate  with  the  principal  and  a  strict 
compliance  with  the  instructions  would  be  detrimerj 
to  him. 


90  DUTIES    OF    AGENT    TO    PRINCIPAL.      [§§175-178. 

See  Foster  v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am.  Dec.  604; 
Greenleaf  v.  Moody,  13  Allen  (Mass.)  363;  Bartlett  v.  Sparkman,  95 
Mo.  136,  6  Am.  St.  Rep.  35. 

§  176.  Ambiguous  instructions.— And  if  the  instruc- 
tions are  ambiguous,  and  the  agent  in  good  faith  adopts 
one  reasonable  construction,  he  will  not  be  liable  be- 
cause the  principal  may  have  intended  another.  Usage 
will  not  justify  a  breach  of  positive  instructions  to  the 
contrary. 

See  Leroy  v.  Beard,  8  How.   (U.  S.)  451,  Cas.  Ag.  382. 

§  177.  Effect  of  custom. — It  is  ordinarily  not  only 
the  right  but  the  duty  of  the  agent  to  observe  and  com- 
ply with  such  valid  and  established  customs  and  usages 
as  apply  to  the  subject  matter  or  the  performance  of 
his  agency.  Such  customs  and  usages,  however,  cannot 
as  between  the  principal  and  the  agent,  overrule  posi- 
tive instructions  to  the  contrary. 

See  Wanless  v.  McCandless,  38  Iowa  20;  Osborne  v.  Rider,  62 
Wis.  235. 

3.     To  Exercise  Care. 

§  178.  Duty  to  exercise  care. — It  is  also  the  duty 
of  the  agent  not  to  be  negligent  in  the  performance  of 
his   duty.     Negligence  is  the   failure   to   exercise   that 


— '   r   Hi  r  — 


degree  of  care  reasonably  to  be  expected  under  the  cir- 
oimistances  of  the  case — suchja  degree  of  care  as  the 
ordinarily  prudent  man  would  exercise  under  like  cir- 
cumstances. By  accepting  the  employment,  without 
stipulating  otherwise,  the  ageni  impliedly  warrants 
that  he  possesses  a  competent  degree  of  skill  for  the 
duty,  and  that  in  performing  the  duty  he  will  exercise 
a  reasonable  degree  of  care,  skill  and  diligence.  He 
does  not  agree  that  he  will  make  no  mistakes  whatever, 
or  that  he  will  exercise  the  highest  skill  or  diligence, 


§§178-180.]      DUTIES    OF    AGENT    TO    PRINCIPAL.  97 

but  he  does  agree  that  he  will  exercise  reasonable  skill, 
and  that  he  will  take  the  usual  precautions. 

See  Page  v.  Wells,  37  Mich.  415,  Cas.  Ag.  493;  Johnson  v.  Martin, 
11  La.  Ann.  27,  66  Am.  Dec.  193,  Cas.  Ag.  495;  Nixon  v.  Bogin,  26 
S.  Car.  611,  Cas.  Ag.  492;  Bowerman  v.  Rogers,  125  U.  S.  585,  31 
L.  ed.  815;  Paul  v.  Grimm,  165  Pa.  139,  30  Atl.  Rep.  721,  44  Am.  St. 
Rep.  648. 

§  171).  Special  skill  required  in  some  cases.  — There 
arc  many  cases,  however,  wherein  more  than  the  skill 
possessed  by  the  ordinary  man  may  reasonably  be  re- 
quired. Thus,  where  the  agent  is  employed  in  a 
capacity  which  implies  the  possession  and  exercise  of 
special  skill,  as,  for  example,  when  an  attorney  at  law, 
a  broker,  etc.,  undertakes  to  do  some  act  in  the  line  of 
his  special  calling,  then  the  skill  ordinarily  possessed 
and  exercised  by  persons  pursuing  that  calling  may  rea- 
sonably be  required. 

See  Pennoyer  v.  Willis,  26  Oreg.  1,  46  Am.  St.  Rep.  594;  Craig  v. 
Chambers,  17  Ohio  St.  253;  Howard  v.  Grover,  28  Me.  97;  McNevins 
v.  Lowe,  40  111.  209. 

More  than  the  ordinary  skill  may  also  be  reasonably 
required  where  the  agent,  though  perhaps  not  belong- 
ing to  any  of  the  specially  skilled  classes,  has  in  the 
particular  case  specially  undertaken  to  exercise  ex- 
traordinary skill. 

See  Isham  v.  Post,  141  N.  Y.  100,  35  N.  E.  Rep.  1084,  38  Am.  St. 
Rep.  766. 

§  180.  How  when  services  gratuitous. — When  an 
agent  professiug  special  skill  is  employed  in  the  line  of 
his  calling,  the  fact  that  he  was  not  to  be  paid  for  his 
services  is  no  excuse  for  not  exercising  such  skill ;  but 
one  serving  gratuitously  in  other  cases  would  not  be 
liable  in  the  absence  of  gross  negligence  or  bad  faith. 

See  Foster  v.  Essex  Bank,  17  Mass.  479,  9  Am.  Dec.  168;   Shiells 
v.  Blackburne,  1  H.  Blackstone,  158:   Williams  v.  McKay,  40  N.  J. 
7 


98  DUTIES    OF    AGENT    TO    PRINCIPAL.      [§§  180-183. 

Eq.  189,  53  Am.  Rep.  775;  First  National  Bank  t.  Ocean  National 
Bank,  60  N.  Y.  295,  19  Am.  Rep.  181;  Isham  r.  Post,  141  N.  Y.  100, 
35  N.  E.  Rep.  1084,  28  Am.  St.  Rep.  766. 

§  181.  Negligence  in  loaning  money. — An  agent 
employed  to  make  loans  does  not  impliedly  warrant  the 
safety  of  his  loans  or  the  solvency  of  the  borrower,  but 
he  will  be  liable  for  losses  occurring  from  negligence 
in  loaning  to  irresponsible  parties,  or  from  a  neglect  to 
obtain  suitable  security,  or  to  secure  and  perfect  the 
proper  evidences  of  the  loan. 

See  Bank  of  Owensboro  v.  Western  Bank,  13  Bush  (Ky.),  526,  26 
Am.  Rep.  211,  Cas.  Ag.  206. 

§  182.  Negligence  in  effecting  insurance. — In  the 
same  way,  an  agent  employed  to  effect  insurance  does 
not  impliedly  guaranty  the  soundness  of  the  company 
or  the  collection  of  the  insurance  money,  but  he  would 
be  liable  for  a  loss  proximately  resulting  from  his  neg- 
lect in  insuring  in  a  company  not  in  good  standing,  or 
in  taking  defective  policies,  or  in  procuring  insufficient 
amounts,  or  in  ignoring  the  instructions  of  his  prin- 
cipal. 

See  Storer  v.  Eaton,  50  Me.  219,  79  Am.  Dec.  611;  Strong  v.  High. 
2  Rob.  (La.)  103,  38  Am.  Dec.  195;  Shoenfeld  v.  Fleisher,  73  111. 
404;  Sawyer  t.  Mayhew,  51  Me.  398;  Brant  t.  Gallup,  111  111.  487,  53 
Am.  Rep.  638;  Milburn  Wagon  Co.  v.  Evans,  30  Minn.  89. 

§  183.  Negligence  in  collecting. — So  an  agent  em- 
ployed to  make  collections  does  not  impliedly  guaranty 
that  he  will  collect  the  money  or,  unless  charged  with 
the  duty  of  special  diligence,  that  he  will  drop  all  other 
business  and  attend  solely  to  that;  but  he  is  liable  for  a 
loss  of  the  debt  which  results  from  his  failure  to  exer- 
cise reasonable  care,  skill  and  diligence  in  collecting 
the  money,  or  for  a  loss  of  the  proceeds  caused  by 
negligence  or  disregard  of  instructions  in  remitting  it. 

Ere  Butts  v.   Phelps,  79  Mo.  302;    Walker  v.  Walker.  5  Heisk. 


§§  183-187.]      DUTIES    OF    AGENT    TO    PRINCIPAL. 


!  n 


(Term.)  425;  Wilson  v.  Wilson.  26  Penn.  Su  3J3;  Foster  v.  Pre*. 
8  Cowen  (N.  Y.)   108;  Kerr  v.  Cotton,  23  Tex.  411. 

§  184.  Liability  for  defaults  of  correspond- 
ents. —An  attorney  who  hikes  a  claim  "for  collection" 
is  liable  for  the  defaults  of  his  own  clerks  and  agents, 
and  if  he  sends  the  claim  to  another  attorney  for  col- 
lection, he  is  liable  for  his  defaults.  Whether  a  bank 
which  undertakes  to  collect  is  liable  for  the  default  of 
its  correspondent  banks,  is  disputed,  but  the  weight  of 
authority  is  that  it  is  so  liable. 

See  Cummins  v.  Heald,  24  Kan.  600,  36  Am.  Rep.  264,  Cas.  Ag. 
247;  Exchange  Nat.  Bank  v.  Third  Nat  Bank,  112  U.  S.  276,  Cas.  Ag. 
239;  First  National  Bank  v.  Sprague,  34  Neb.  318,  51  N.  W.  Rep. 
846,  15  L.  A.  R.  498;  Streissguth  v.  National  Bank,  43  Minn.  50,  44 
N.  W.  Rep.  797,  7  L.  R.  A.  363;  Givan  v.  Bank  of  Alexandria,  — 
Tenn,  — ,  52  S.  W.  Rep.  923,  47  L.  R.  A.  270;  Minneapolis  Sash  and 
Door  Co.  v.  Metropolitan  Bank,  76  Minn.  136,  78  N.  W.  Rep.  980,  44 
L.  R.  A.  504;    Kershaw  v.  Ladd,  34  Oreg.  375,  44  L.  R.  A.  236. 

l/  4.     To  account  for  Monet;  and  Property. 

§  185.  Duty  to  account. — It  is  the  duty  of  the  agent 
to  keep  correct  accounts  of  his  transactions,  and  to  ac- 
count to  his  principal  for  all  money  or  properly  which 
comes  to  his  hands  belonging  to  the  principal. 

See  Jett  v.  Hempstead,  25  Ark.  462,  Cas.  Ag.  496;  Baldwin  v. 
Potter.  46  Vt.  402;    Taul  t.  Edmondson,  37  Tex.  556. 

§  186.  Cannot  deny  principal's  title,  etc. — lie  can- 
not deny  his  principal's  title,  nor  can  he  set  up  the  ille- 
gality of  the  transaction  in  which  he  received  the  prop- 
erty or  money  as  an  excuse  for  not  accounting  for  it. 

See  Kiewert  v.  Rindskopf,  46  Wis.  4S1.  32  Am.  Rep.  731,  Cas.  Ag. 
497;  Pittsburg  Mining  Co.  v.  Spooner,  74  Wis.  307,  42  N.  W.  Rep. 
259,  17  Am.  St.  Rep.  149;  Peters  v.  Grim,  149  Pa.  163,  24  Atl.  Rep. 
192,  34  Am.  St  Rep.  599;  Smith  v.  Blachley,  188  Pa.  550,  41  Atl.  Rep. 
619,  68  Am.  St.  Rep.  887;  Floyd  v.  Patterson,  72  Tex.  202,  10  S.  W. 
Rep.  526,  13  Am.  St.  Rep.  787. 

§  187.  Duty  to  give  notice  of  collection. — Upon 
collecting  money  for  his  principal,  the  agent,  unless  he 


100  DUTIES    OF    AGENT    TO    PRINCIPAL.      [§§187-189. 

already  has  instructions  as  to  remitting  it,  should  give 
the  principal  notice  of  that  fact  within  a  reasonable 
time,  and  if  he  has  done  so,  the  agent  cannot  be  sued  for 
the  money  until  the  principal  has  made  a  demand  for  it 
which  has  been  refused.  The  agent  will  be  liable  for 
interest  if  he  fails  to  pay  over  on  demand  or  if  he  fails 
to  give  notice  of  the  collection.  The  statute  of  limita- 
tions will  usually  not  begin  to  run  in  the  agent's  favor 
until  he  has  given  notice  of  the  collection,  or  until  a  de- 
mand has  been  made  upon  him. 

See  Jett  v.  Hempstead,  25  Ark.  462,  Cas.  Ag.  496. 

§  1S8.  Agent  must  not  mix  principal's  funds  with 
his  own. — The  agent  must  not  mix  his  principal's  funds 
with  his  own,  and  if  he  does  so  he  will  be  liable  for 
their  loss.  The  principal  may  follow  and  recover  his 
money  or  property,  so  long  as  he  can  identify  it,  until 
it  comes  into  the  hands  of  a  bona  fide  holder. 

See  Naltner  v.  Dolan,  108  Ind.  500,  58  Am.  Rep.  61,  Cas.  Ag.  623; 
Farmer's  Bank  v.  King,  57  Penn.  202,  98  Am.  Dec.  215,  Cas.  Ag.  590; 
Roca  v.  Byrne,  145  N.  Y.  182,  39  N.  E.  Rep.  812,  45  Am.  St.  Rep.  599. 

\/  5.     To  give  Notice  to  his  Principal. 

§  189.  Duty  to  give  notice. — It  is  the  duty  of  the 
agent  to  give  the  principal  timely  notice  of  all  facts 
coming  to  the  agent's  knowledge  and  relating  to  the 
subject  matter  of  the  agency  which  it  is  material  for 
the  principal  to  know  for  the  protection  of  his  interests. 
This  duty  is  not  only  important  in  itself,  but  it  fur- 
nishes the  foundation  for  the  rule,  hereafter  to  be  con- 
sidered (§  21(5),  that  notice  to  the  agent  is  notice  to 
the  principal. 

See  Devall  v.  Burbridge,  4  Watts  &  S.   (Pa.)  305,  Cas.  Ag.  499; 
ITenry  v.  Allen,  151  N.  Y.  1,  45  N.  E.  Rep.  355,  36  L.  R.  A.  658;  Amer- 
ican Surety  Co.  v.  Pauly,  170  U.  S.  133,  42  L.  ed.  977;  Enos  v.  St. 
Paul,  etc.,  Ins.  Co.,  4  S.  Dak.  639,  57  N.  W.  Rep.  919,  46  Am.  St.  Rep. 
-796. 


§  190.] 


DUTIES  OF  AGENT  TO  THIRD  PERSONS. 


101 


CHAPTER    XII. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THE  AGENT  TO  THIRD 

PERSONS. 


§  190.  In  general. 

I.      LIABILITY    IN    CONTRACT. 

191.  What  cases  may  occur. 

1.  Where  he  makes  a  con- 
tract without  authority. 

192.  Basis  of  liability. 

193.  How    want    of    authority 

may  arise. 

194.  What  forms  present  them- 

selves. 

195.  Liability  of  agent. 

196.  In    what    form    of    action 

liable. 

197.  When   liable  on  the   con- 

tract itself. 

198.  Limitations. 

2.  Where  there  was  no  re- 
sponsible  principal. 

199.  Agent  liable  if  no  princi- 

pal in  existence. 

200.  Principal  dead. 

3.  Where  agent  pledges 
his  personal  responsi- 
bility. 

201.  Agent   may   bind   himself. 

202-203.  Effect  of  not  disclos- 
ing existence  or  name 
of  principal. 

§  190.  In  general. — The  ordinary  purpose  of  the 
agent  is  to  bring  his  principal  into  relations  and  obliga- 
tions to  third  persons,  but  not  to  bind  or  obligate  him- 
self. He  may,  however,  so  conduct  himself — usually 
unintentionally  but  sometimes  by  design— as  to  incur 


§  204.  Agent  of  foreign  principal. 

205.  Presumption    that    princi- 

pal was  to  be  bound. 

206.  Presumption    stronger    in 

case  of  public  agent. 

4.  Where   Agent   Has   Obtained 
Money   From   Third   Per- 
son. 

207.  When    money   voluntarily 

paid  by  mistake  may  be 
recovered. 

208.  Money   obtained    illegally. 

5.  Where   Agent   Has   Received 
Money  For  Third  Person. 

209.  Money  delivered  to  agent 

by    principal    for    third 
person. 
II.     IN    TOBT. 

210.  Agent   not   liable   in   tort 

for  breach  of  duty  ow- 
ing to  principal  alone. 

211.  Non-feasance  —   Mis-feas- 

ance. 

212.  Trespass — Conversion. 

213.  How  sued. 


102  DUTIES  OF  AGENT  TO  THIRD  PERSONS.    [§§  190-193. 

such  a  liability.     This  liability,  under  varying  circum- 
stances, may  be  either  (1)  in  contract  or  (2)  in  tort 

I.      LIABILITY   IN   CONTRACT. 

§  191.  What  cases  may  occur. — The  agent  may 
make  himself  liable  to  third  persons  in  contract, 
either — 

(1)  Where  he  makes  a  contract  without  authority; 

(2)  Where  he  contracts  in  the  name  of  a  principal 
having  no  legal  existence; 

(3)  Where,  though  authorized  to  bind  his  principal 
he  expressly  pledges  his  personal  responsibility; 

(4)  Where  he  has  obtained  money  for  his  principal 
from  the  third  person; 

-    (5)     Where  he  has  received  money  from  his  prin- 
cipal for  the  third  person. 

Each  of  these  cases  will  be  separately  considered. 

1.     Where  he  makes  a  Contract  icithout  Authority. 

§  192.  Basis  of  liability. — A  person  who  assumes  as 
agent  for  another  to  make  a  contract  with  a  third  per- 
son, impliedly  if  not  expressly  represents  that  he  is  au- 
thorized by  his  principal  to  make  the  contract  as  he 
does;  and  if  it  proves  to  be  unauthorized  the  assumed 
agent  will  be  liable  to  the  third  person  for  the  loss  sus- 
tained by  the  latter  from  the  failure  of  the  contract. 

See  Kroeger  v.  Pitcairn,  101  Pa.  311,  47  Am.  Rep.  718,  Cas.  Ag. 
501;  Farmers'  Co-operative  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26 
N.  E.  Rep.  110,  21  Am.  St.  Rep.  846;  Wallace  v.  Bentley,  77  Cal.  19, 
18  Pac.  Rep.  788,  11  Am.  St  Rep.  231;  Adams  v.  Fraser,  82  Fed.  Rep. 
211,  27  C.  C.  A.  108. 

§  193.  How  want  of  authority  may  arise. — His 
want  of  authority  may  result  either,  first,  because  he 
never  possessed  it ;  second,  because  once  having  had  it, 
it  has  since  expired;  or,  third,  because,  while  having 
some  authority,  or  authority  to  perform  the  given  act 


§§  193-196.]     DUTIES  OF  AGENT  TO  THIRD  PERSONS.  1 08 

in  a  certain  way,  he  has  exceeded  his  authority,  or 
failed  to  observe  the  manner  prescribed. 

§  194.  What  forms  present  themselves. — His  liabil- 
ity for  acting  without  authority  may  arise  in  one  of 
four  classes  of  cases: 

1.  Where  an  agent  erroneously  believing  himself 
authorized,  makes  an  express  representation  as  to  his 
authority. 

2.  Where  an  agent,  knowing  that  he  is  not  author- 
ized, makes  an  express  representation  as  to  his  au- 
thority. 

3.  Where  an  agent,  erroneously  believing  himself 
authorized,  makes  no  express  representation,  but  as- 
sumes to  act  as  one  having  authority. 

4.  Where  an  agent,  knowing  that  he  has  no  author- 
ity, makes  no  express  representation,  but  assumes  to 
act  as  one  authorized. 

§  195.  Liability  of  agent. — In  all  of  these  cases  the 
agent  will  be  liable  to  the  third  person  with  whom  he 
deals  for  injury  which  such  person  naturally  and  proxi- 
mately sustains  by  reason  of  the  act's  being  unauthor- 
ized. 

See  Kroeger  v.  Pitcairn,  101  Pa.  311,  47  Am.  Rep.  718,  Cas.  Ag. 
501;  Simmons  v.  More,  100  N.  Y.  140,  Cas.  Ag.  505;  Farmers'  Co- 
operatire  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N.  E.  Rep.  110,  21 
Am.  St.  Rep.  847;  Bank  of  Hamburg  v.  Wray,  4  Strob.  (S.  Car.)  L. 
87.  51  Am.  Dec.  659;  Patrick  v.  Bowman,  149  U.  S.  411.  37  L.  ed.  790. 

It  is  not  at  all  necessary  to  the  liability  of  the  agent 
that  he  should  have  acted  in  bad  faith,  although  that 
fact  may  affect  the  form  or  the  extent  of  his  liability. 
Even  where  in  good  faith  he  believes  he  has  authority 
to  make  the  contract,  but  has  not,  he  is  nevertheless 
liable.  WTiere  a  loss  must  fall  upon  one  of  two  inno- 
cent persons  he  must  bear  it  by  whose  act,  however 
innocent,  it  was  made  possible. 


104  DUTIES  OF  AGENT  TO  THIRD  PERSONS.    [§§  195-198. 

See  Bank  of  Hamburg  v.  Wray,  supra;  Farmers'  Co-operative 
Trust  Co.  v.  Floyd,  supra;  Dale  v.  Donaldson  Lumber  Co.,  48  Ark. 
188,  3  Am.  St.  Rep.  224. 

§  196.  In  what  form  of  action  liable. — The  liabil- 
ity of  the  agent  may,  according  to  the  facts,  be  enforced 
either  in  an  action  of  tort  or  of  contract. 

Where  the  agent,  knowing  that  he  is  unauthorized, 
has  made  express  representations  as  to  his  authority; 
and  also  where  he  has  assumed  to  act,  knowing  that  he 
is  unauthorized,  an  action  on  the  ease  for  the  deceit 
is  an  appropriate  remedy. 

Where,  however,  the  agent  acted  in  good  faith,  an 
action  based  upon  the  express  or  implied  warranty  of 
authority  would  be  the  appropriate  remedy. 

And  even  in  the  former  cases  where  the  action  for 
deceit  might  be  maintained,  the  party  injured  may,  at 
his  option,  ignore  or  waive  the  element  of  deceit  and 
base  his  action  upon  the  express  or  implied  warranty. 

§  197.  When  liable  on  the  contract  itself. — It  has 
sometimes  been  held  that  an  agent  who  makes  a  con- 
tract without  authority  is  liable  upon  the  contract  it- 
self, as  though  originally  made  by  him  as  principal;  but 
the  better  rule  is  that  the  agent  is  liable  on  the  contract 
itself  only  in  those  cases  in  which  the  contract  contains 
apt  words  to  bind  him  personally,  or  in  which  he  has 
pledged  his  personal  responsibility.  In  other  cases  the 
action  should  be,  not  on  the  contract,  but  on  the  express 
or  implied  warranty  of  authority. 

See  Patterson  v.  Lippincott,  47  N.  J.  L.  457,  54  Am.  Rep.  178,  Cas. 
Ag.  507;  Ogden  v.  Raymond,  22  Conn.  379,  58  Am.  Dec.  429;  McCurdy 
v.  Rogers,  21  Wis.  197,  91  Am.  Dec.  468;  Thilmany  v.  Iowa  Paper  Bag 
Co.,  108  Iowa,  357,  75  Am.  St.  Rep.  259. 


§  198.    Limitations.— But  to  make  the  agent  liable  in 
any  case,  the  contract  must  be  one  which  would  have 


§§  198-199.]    DUTIES  OF  AGENT  TO  THIRD  PERSONS.  1 05 

been  enforceable  against  the  principal  if  the  agent  had 
been  authorized  to  make  it. 

See  Baltzen  v.  Nicolay,  53  N.  Y.  467. 

There  is  no  implied  warranty  by  the  agent  that  the 
principal  has  authority  to  make  the  contract.  "He 
simply  covenants  that  he  has  authority  to  act  for  his 
principal,  not  that  the  act  of  the  principal  is  legal  and 
binding." 

See  Thilmany  v.  Iowa  Paper  Bag  Co.,  108  Iowa  357,  75  Am.  St. 
Rep.   259. 

If  the  agent  makes  no  express  representation  as  to 
his  authority,  and  fully  and  fairly  discloses  to  the  other 
party  all  the  circumstances  connected  with  it,  so  that 
the  other  party  can  judge  for  himself  whether  the  agent 
is  authorized,  the  agent  will  not  be  liable. 

See  Thilmany  v.  Iowa  Paper  Bag  Co.,  supra. 

2.     Where  there  was  no  responsible  Principal. 

§  199.    Agent  liable  if  no  principal  in  existence. — 

For  reasons  analogous  to  those  referred  to  in  the  pre- 
ceding sections,  one  who  assumes  to  act  as  agent  for  a 
principal  having  no  legal  existence — as,  for  example,  a 
committee,  a  voluntary  society,  an  alleged  corporation 
whose  corporate  existence  has  failed  or  expired,  and 
the  like — must  usually  be  personally  liable.  There  is 
no  principal  to  be  held,  it  was  clearly  the  intention  that 
some  one  should  be  bound,  and  the  responsibility  for 
the  contract  must  ordinarily  fall  upon  the  pretended 
agent. 

This  liability,  as  in  the  preceding  cases,  may  be  upon 
the  contract  itself  where  it  contains  apt  words  to  create 
such  a  liability,  or  upon  the  express  or  implied  war- 
ranty of  the  existence  of  a  principal. 

As  in  the  preceding  cases  also,  it  is  immaterial  that 


106  DUTIES  OF  AGENT  TO  THIRD  PERSONS.     [§§  199-201. 

the  pretended  agent  acted  in  good  faith :  even  if  he  were 
entirely  innocent  the  responsibility  must  still  fall  upon 
him. 

See  Lewis  v.  Tilton,  61  Iowa  220,  52  Am.  Rep.  436,  Cas.  Ag.  510; 
Clark  r.  O'Rourke,  111  Mich.  108,  66  Am.  St.  Rep.  389;  Fredenhall  v. 
Taylor,  26  Wis.  286;  Winona  Lumber  Co.  v.  Church,  6  S.  Dak.  498; 
Lawler  t.  Murphy,  58  Conn.  294,  20  Atl.  Rep.  457,  8  L.  R.  A.  113; 
Codding  v.  Munson.  52  Neb.  580,  72  N.  W.  Rep.  846,  66  Am.  St.  Rep. 
524. 

§  200.   Principal  dead. — This  rule,  however,  does 

not,  it  is  held,  apply  in  a  case  wherein,  while  there  has 
been  a  responsible  principal,  he  has,  without  the  knowl- 
edge of  the  agent  or  the  other  party,  died  before  the 
contract  in  question  was  made.  The  death  of  the  prin- 
cipal is  usually  a  fact  equally  within  the  knowledge  of 
both  parties,  and,  if  so,  the  agent  cannot  be  deemed 
guilty  of  a  wrong  or  omission  in  failing  to  know  of  it. 

See  Smout  v.  Ilbery,  10  Mees.  &  Wels.  1. 

3.     Where  Agent  pledges  his  personal  Responsibility. 

§  201.  Agent  may  bind  himself. — The  agent  may 
also  make  himself  liable  in  many  cases  where,  though 
authorized  to  make  the  particular  contract  in  question, 
he  makes  it  in  such  a  manner  as  not  to  bind  the  princi- 
pal. Thus,  though  he  intended  to  bind  the  principal,  he 
may  inadvertently  or  intentionally  use  such  words  as  to 
bind  himself  personally,  and  if  he  does  so,  he  may  be 
held  personally  responsible.  The  very  common  cases, 
already  referred  to,  wherein  an  agent,  though  intend- 
ing to  bind  his  principal,  has  signed  a  contract  in  hi« 
own  name  with  the  word  "agent,"  "trustee,"  and  the 
like  added,  are  excellent  illustrations  of  this  rule. 

See  ante  §  161;    Hobson  v.  Hassett,  76  Cal.  203,  9  Am.  St.  Rep. 
193,  Cas.  Ag.  442;  Tilden  v.  Barnard,  43  Mich.  376,  38  Am.  Rep.  197; 


§§  201-203.]     DUTIES  OF  AGENT  TO  THIRD  PERSONS.  107 

Knickerbocker  v.  Wilcox,  83  Mich.  200,  47  N.  W.  Rep.  123,  21  Am. 
St.  Rep.  595. 

§  202.  Effect  of  not  disclosing  existence  or  name 
of  principal. — So,  for  the  obvious  reason  that  he  din- 
closes  no  one  else  to  be  bound  and  must  be  presumed  to 
intend  to  bind  some  one,  the  agent  who  conceals  the 
fact  of  his  agency  or  the  name  of  his  principal,  and  con- 
tracts as  the  ostensible  principal,  will  be  personally 
liable. 

See  Amans  t.  Campbell,  70  Minn.  493,  68  Am.  St.  Rep.  547;  Bald- 
win r.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324;  Cobb  v.  Knapp,  71  N.  Y. 
348,  27  Am.  Rep.  51;  Patrick  v.  Bowman,  149  U.  S.  411,  37  L.  ed.  TV 

xVn  agent  who  would  escape  personal  responsil 
must  disclose  both  the  fact  of  his  agency  and  the  nan:, 
of  his  principal  at  the  time  of  making  the  contract,  and 
the  subsequent  disclosure  of  the  principal  J$J|j  Hot  be 
sufficient  to  relieve  the  agent. 

See  Cobb  r.  Knapp,  71  N.  Y.  34S,  27  Am.  Rep.  $$, 

In  many  of  these  cases  wherein  the  principal  is  un- 
disclosed, the  principal  himself,  as  will  be  seen  her 
after,  may  be  so  held  liable  when  discovered;  but  the 
fact  that  he  may  be  held  responsible  doesi  not  relieve 
the  agent;  it  simply  gives  the  other  party  an  option  to 
pursue  the  one  or  the  other  as  he  pleases. 

i 

See  post  §  243. 

§  203.     The  converse  of  the  rule  laid  down  in  the 

preceding  section  is,  of  course,  true.  If  the  agent 
makes  a  full  disclosure  of  the  fact  of  his  agency  and  of 
the  name  of  his  principal,  and  contracts  only  as  agent 
and  for  the  principal  so  disclosed,  he  incurs  no  personal 
responsibility. 

See  Huffman  v.  Newman,  55  Neb.  713,  76  N.  W.  Rep.  409. 


108  DUTIES  OF  AGENT  TO  THIRD  PERSONS.    [§§204-206. 

§  204.  Agent  of  foreign  principal. — It  was  former- 
ly the  rule  that  an  agent  who  acted  for  a  foreign  prin- 
cipal was  himself  personally  liable,  because  it  must  be 
presumed  that  credit  was  given  to  the  agent  rather 
than  to  the  foreign  and  inaccessible  principal ;  but  this 
rule  no  longer  prevails  in  this  country,  and  the  agent 
of  a  foreign  principal  stands  upon  the  same  ground  as 
the  agent  of  a  domestic  principal. 

See  Maury  v.  Ranger,  38  La.  Ann.  485,  58  Am.  Rep.  197;  Oelrieks 
v.  Ford.  64  U.  S.   (23  How.)   49. 

§  205.  Presumption  that  principal  was  to  be  bound. 
— Where  dealings  are  had  with  the  agent  of  a  known 
principal," the  presumption  will  be  that  credit  was  given 
to  the  principal,  and  that  the  principal,  rather  than  the 
agent,  was  to  be  bound;  but  this  presumption  may  be 
rebutted  by  evidence  of  an  intention  to  bind  the  agent 
personally. 

See  Moline  Malleable  Iron  Co.  v.  York  Iron  Co.,  27  C.  C.  A.  442, 
53  U.  S.  App.  580,  83  Fed.  Rep.  66. 

§206.  Presumption  stronger  in  case  of  public 
agent. — In  the  case  of  a  public  agent,  the  presumption 
that  the  agent  was  not  to  be  personally  bound  is 
stronger  than  in  the  case  of  a  private  agent ;  and  a 
known  public  agent  will  only  be  held  personally  bound 
where  the  evidence  is  very  clear  of  an  intention  so  to 
bind  him ;  and  a  public  agent  who  discloses  the  source 
of  his  authority,  and  is  guilty  of  no  fraud  or  misrepre- 
sentation, is  not  liable  upon  an  implied  warranty  of 
authority;  because  his  authority  is  a  matter  of  public 
law  or  record,  which  the  other  party  must  examine  for 
himself. 

See  McCurdy  v.  Rogers,  21  Wis.  197,  91  Am.  Dec.  468;  Knight  v. 
Clark,  48  N.  J.  L.  22,  57  Am.  Rep.  534,  Cas.  Ag.  434. 


85  207-209.]    DUTIES  OF  AGENT  TO  THIRD  PERSONS.  109 

4.     Where  Agent  has  obtained  Money  from  third 

Person. 

§  207.  When  money  voluntarily  paid  by  mistake 
may  be  recovered. — Where  money  has,  by  mistake,  been 
voluntarily  paid  to  an  agent  for  the  use  of  his  prin- 
cipal, the  agent  will  not  be  liable  to  the  person  paying 
it,  if,  before  notice  of  the  mistake,  he  has  paid  it  over 
to  his  principal,  but  he  will  be  liable  if  he  pays  it  over 
after  notice. 

So  an  agent  who  receives  money  by  mistake  on  ac- 
count of  his  principal,  will  not  be  liable  where,  before 
notice  of  the  mistake,  his  situation  has  so  changed  that 
he  will  be  prejudiced  if  the  payment  is  held  invalid. 

See  Herrick  v.  Gallagher,  60  Barb.  566,  Cas.  on  Ag.  512;  Smith 
v.  Binder,  75  111.  492. 

If,  however,  the  agency  were  not  known,  the  agent 
will  be  liable  even  though  he  has  paid  the  money  to  his 
principal. 

See  Smith  v.  Kelly,  43  Mich.  390. 

§  208.  Money  obtained  illegally.— An  agent  who  has 
obtained  money  from  third  persons  illegally,  as  by  com- 
pulsion or  extortion,  will  be  liable  to  the  person  paying 
it,  although  he  has  paid  it  over  to  his  principal. 

See  Ripley  v.   Gelston,  9   Johns.    (N.  Y.)    201.  6   Am.   Dec.  2T1; 
Grover  v.  Morris,  73  N.  Y.  473. 

5.     Where  Agent  has  rewired  Money  for  third  Person. 

§  209.  Money  delivered  to  agent  by  principal  for 
third  person. — Where  money  has  been  delivered  to  an 
agent  by  the  principal  to  be  paid  to  a  third  person,  the 
principal  may  countermand  the  order  to  pay,  and  re- 
cover the  money  from  the  agent,  at  any  time  before  the 


110  DUTIES  OF  AGENT  TO  THIRD  PERSONS.     [§§209-211. 

agent  has  either  paid  it  over  to  the  third  person,  or 
assumed  an  obligation  to  such  third  person  to  pay  it. 

See  Williams  t.  Everett,  14  East  582. 

Whether  the  third  person  may  sue  for  and  recover  it 
from  the  agent  is  not  certain.  It  is  held  in  many  cases 
that  a  person  for  whose  benefit  a  contract  was  made 
but  who  was  not  a  party  to  it,  cannot  maintain  an 
action  at  law  upon  it.  Other  cases  recognize  the  right 
of  the  beneficiary  under  a  contract,  though  not  a 
party  to  it,  to  sue  upon  and  enforce  it. 

See  the  exhaustive  note  upon  thiB  subject  in  71  Am.  St.  Rep. 
176.  Also  25  L.  R.  A.  257;  39  Am.  St.  Rep.  531;  9  Am.  Dec.  155; 
3  Am.  Dec.  305. 

II.      IN   TORT. 

5  210.  Agent  not  liable  in  tort  for  breach  of 
duty  owing  to  principal  alone. — An  agent  is  not  lia- 
ble in  tort  to  third  persons  who  have  received  injury 
because  of  the  agent's  failure  to  perform  some  duty 
which  he  owed  to  his  principal  alone.  Thus,  one  who 
purchases  real  estate  in  reliance  upon  an  opinion  as  to 
its  title  given  to  the  vendor  by  the  latter's  attorney,  or 
who  purchases  a  mortgage  upon  the  strength  of  a 
search  made  by  the  attorney  of  the  original  mortgagee, 
cannot  recover  of  the  attorney  if  the  title  proves  de- 
fective or  the  search  incomplete. 

See  Savings  Bank  v.  'Ward,  100  U.  S.  195;  Dundee  Mortg.  Co.  v. 
Hughes,  20  Fed.  Rep.  39;  Houseman  v.  Girard  Ass'n,  81  Penn.  St. 
256;  Fish  t.  Kelly,  17  Com.  B.  (N.  S.)  194. 

§  211.  Non-feasance  —  Mis-feasance. — While  it  is 
thus  true  that  the  agent  is  not  liable  to  third  persons  for 
the  breach  of  a  duty  owing  solely  to  his  principal,  there 
are  many  cases  wherein  he  will  at  the  same  time  incur 
a  liability  to  third  persons.     Thus  an  agent  charged 


§211.]  DUTIES  OF  AGENT  TO  THIRD  PERSONS.  11] 

with  the  custody  and  control  of  property,  while  he  may 
owe  duties  respecting  it  to  his  principal,  is  at  the  same 
time  under  an  obligation  not  to  permit  the  property  so 
controlled  by  him  to  cause  injury  to  third  persons.  An 
agent  given  possession  and  control  of  a  horse  may  be 
under  a  duty  to  his  principal  not  to  injure  the  horse  by 
overdriving,  but  he  is  also  under  a  duty  to  third  per- 
sons not  to  injure  them  while  overdriving  the  horse. 
So  an  agent  given  the  charge  and  control  of  real  estate 
and  charged  with  the  duty  of  keeping  it  in  repair,  owes 
a  duty  to  his  principal  that  the  latter  shall  not  suffer 
from  his  neglect  in  making  repairs,  but  he  may  also  owe 
a  duty  to  third  persons  to  see  that  they  do  not  suffer 
loss  by  reason  of  his  failure  to  keep  the  property  in 
suitable  repair.  Where  the  agent  thus  owes  a  duty 
to  third  persons,  he  will  be  liable  to  them  for  injuries 
caused  by  his  failure  to  perform  the  duty  owing  to 
them,  even  though  he  may  also  be  liable  to  his  principal 
for  the  neglect  of  the  duty  which  he  owed  to  him.  The 
breach  of  the  duty  owing  to  the  principal,  where  it  con- 
sists in  not  doing  something  which  he  ought  to  do,  is 
often  termed  non-feasance;  the  breach  of  the  duty  ow- 
ing to  third  persons  not  to  injure  them  by  the  same  act 
or  omission  which  causes  injury  to  his  principal,  is 
sometimes  termed  tnis-feasancr. 

The  fact  that  the  agent  may  thus  owe  a  duty  to  third 
persons  as  well  as  to  his  principal  seems  sometimes  to 
have  been  overlooked. 

See  Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  436, 
Cas.  Ag.  514;  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437, 
Cas.  Ag.  518;  Baird  v.  Shipman,  132  111.  16,  22  Am.  St.  Rep.  504; 
Campbell  t.  Portland  Sugar  Co.,  62  Me.  552,  16  Am.  Rep.  503;  Ellis 
v.  McNaughton,  76  Mich.  237,  42  N.  W.  Rep.  1113,  15  Am.  St.  Rep. 
308;  Mayer  r.  Building  Co.,  104  Ala.  611,  16  So.  Rep.  620,  28  L. 
R.  A.  433;  Greenberg  v.  Whiteonib  Lumber  Co.  90  Wis.  225,  63  N. 
W.  Rep.  93,  48  Am.  St.  Rep.  911,  28  L.  R.  A.  439;   Cameron  v.  Ken- 


112  DUTIES  OF  AGENT  TO  THIRD  PERSONS.    [§§  211-213. 

yon-Connell  Com.  Co.,  22  Mont.  312,  56  Pac.  Rep.  358,  44  L.  R.  A. 

508. 

Compare  notes  in  22  Am.  St.  Rep.  512;  48  Am.  St.  Rep.  923  et 
seq.;  28  L.  R.  A.  433. 

§  212.  Trespass  —  Conversion.  —An  agent  who 
wrongfully  enters  upon  another's  land,  or  wrongfully 
takes  or  detains  or  sells  the  goods  of  another,  is  liable 
to  the  owner  for  the  trespass  or  the  conversion,  even 
though  he  acted  in  good  faith,  supposing  the  property 
to  be  that  of  his  principal,  or  although  he  did  so  by  the 
direction  of  his  principal  supposing  that  the  principal 
was  authorized  to  give  the  directions.  The  fact  that  he 
has  delivered  to  his  principal  the  property  taken,  or  has 
paid  over  to  his  principal  the  proceeds  of  property 
wrongfully  sold  by  his  direction,  is  immaterial.  No 
one  can  escape  the  consequences  of  his  wrongful  act  by 
alleging  that  he  did  it  as  the  agent  of  another. 

See  Spraights  v.  Hawley,  39  N.  Y.  441,  100  Am.  Dec.  452;  Miller 
v.  Wilson,  98  Ga.  567,  58  Am.  St  Rep.  319;  Kimball  v.  Billings,  55 
Me.  147,  92  Am.  Dec.  581;  Wing  v.  Milliken,  91  Me.  387,  40  Atl.  Rep. 
138,  64  Am.  St.  Rep.  238;  Nunnelly  v.  Southern  Iron  Co.,  94  Tenn. 
397,  29  S.  W.  Rep.  361,  28  L.  R.  A.  421;  Swim  v.  Wilson.  90  Cal.  126, 
27  Pac.  Rep.  33,  25  Am.  St  Rep.  110;  Robinson  v.  Bird,  158  Mass. 
357,  33  N.  E.  Rep.  391,  35  Am.  St.  Rep.  495. 

§  213.  How  sued. — The  agent  may  be  sued  alone, 
or,  in  some  cases,  jointly  with  his  principal. 

See  Wright  v.  Compton,  53  Ind.  337;  Phelps  v.  Wait,  30  N.  Y.  78; 
Schaefer  v.  Osterbrink,  67  Wis.  495;  Campbell  v.  Portland  Sugar 
Co.,  62  Me.  552,  16  Am.  Rep.  503;  Mulchey  v.  Methodist  Society,  12b 
Mass.  487;  Hewett  v.  Swift,  3  Allen  (Mass.)  420;  Shearer  v.  Evans, 
89  Ind.  400. 


{§214-215.]      DUTIES    OF    rRINCIPAL    TO    AGENT. 


113 


CHAPTER  XIII. 


OF  THE  DUTIES  AND   LIABILITIES  OF  THE  PRINCIPAL  TO 

THE    AGENT. 


§  214.  In  general. 

1.     The  Payment  of  Com- 
pensation. 

215.  The    right   to    have   com- 

pensation. 

216.  The  amount  of  compensa- 

tion. 

217.  When  compensation 

deemed    to    be    earned. 

—  Where  authority  ter- 
minated by  the  princi- 
pal. 

—  Where  authority 
wrongfully  revoked. 

—  Agent's  duty  to  miti- 


218. 


219. 


220. 


gate   his   damages. 

221.  Where     authority     right- 

fully revoked. 

222.  Where     authority     termi- 

nated by    operation     of 
law. 


§  223.  Where     agent     abandons 
his.  undertaking. 

224.  Where    agent    acted     for 

two  principals. 

225.  Where  agent  violated  his 

trust. 

Where  agency  unlawful. 

Where  extra  duties  re- 
quired. 

Where   agent  holds   over. 

Recoupment  by  principal. 

2.  Re-imbursement  and 
Indemnity  of  Agent. 

230.  Agent's     right    to    re-im- 
bursement. 

231.  Agent's    right    to    indem- 
nity. 

232.  None  where  act  un- 
lawful. 


226. 
227. 

228. 
229. 


§214.  In  general. — The  chief  duties  of  the  princi- 
pal to  the  agent  are  (1)  to  pay  him  his  compensation, 
and  (2)  to  indemnify  him  against  loss  or  injury  sus- 
tained in  the  performance  of  his  duty. 

1.     The  Pay  men  t  of  Compensation. 

§  215.     The   right    to    have    compensation.  — The 

agent's  right  to  compensation  may  be  determined  by 
the  contract  of  the  parties,  or  be  implied  by  law.  Where 
the  parties  have  expressly  agreed  that  the  agent  shall 
or  shall  not  be  entitled  to  compensation,  their  agree- 
ment is  usually  conclusive. 


114  DUTIES    OF    PRINCIPAL    TO    AGENT.       [§§  215-216. 

An  express  agreement  to  pay  is  not  usually  neces- 
sary. As  a  rule,  wherever  services  have  been  rendered 
by  one  person  at  the  express  request  of  another,  the  law 
will  imply  a  promise  by  the  latter  to  pay  for  them. 

See  Bradford  v.  Kimberly,  3  Johns.  Ch.  431,  1  Am.  Lead.  Cas.  866, 
Cas.  Ag.  523. 

But  no  promise  to  pay  will  be  implied  where  the 
parties  are  near  relatives  or  others  who  are  members 
of  the  same  family; 

See  Harris  v.  Smith,  79  Mich.  54,  6  L.  R.  A.  702;  Murphy  v.  Mui 
phy,  1  S.  Dak.  316,  9  L.  R.  A.  820. 

or  where  the  services  were  rendered  as  a  mere  act  ol 
kindness,  or  upon  the  hope  or  expectation,  merely,  that 
they  would  be  paid  for. 

See  Chadwick  v.  Knox,  31  N.  H.  226,  64  Am.  Dec.  329;  Wood  v. 
Ayres,  39  Mich.  345,  33  Am.  Rep.  396. 

Though  the  act  when  done  was  unauthorized,  its  sub- 
sequent ratification  will  give  the  agent  the  same  right 
to  compensation  as  though  it  had  been  previously  au- 
thorized. 

See  Wilson  v.  Dame,  58  N.  H.  392,  Cas.  Ag.  526. 

§216.  The  amount  of  compensation. — Where  the 
parties  have  agreed  upon  the  amount  of  compensation 
to  be  paid,  the  agreement  will  usually  be  conclusive. 

See  Wallace  v.  Floyd,  29  Pa.  St.  184,  72  Am.  Dec.  620,  Cas.  Ag. 
525;  Hamilton  v.  Frothingham,  59  Mich.  253;  Jefferson  v.  Burhans, 
29  C.  C.  A.  481,  58  U.  S.  App.  586,  85  Fed.  Rep.  949. 

Where  no  amount  is  agreed  upon,  the  law  will  imply 
a  promise  to  pay  the  usual  sum,  if  there  be  one,  and  if 
not  then  to  pay  what  the  services  are  reasonably  worth. 

See  McCrary  v.  Ruddlck,  33  Iowa  521;  Millar  v.  Cuddy,  43  Mich. 
273,  38  Am.  Rep.  181. 

For  the  purpose  of  determining  what  they  are  reason- 


5§  216-217.]       DUTIES    OF    PRINCIPAL   TO    AGENT.  115 

ably  worth,  the  opinions  of  witnesses  who  arc  familiar 
with  the  subject  may  be  received. 

See  Eggleaton   v.   Boardman,   37  Mich.   Ji;    Bowen   v.  Bowen,   74 
Ind.  470;  Johnson  y.  Thompson,  72  Ind.  167,  07  Am.  Rep.  152. 

§  217.  When  compensation  deemed  to  be  earned. 
— The  parties  may  agree  upon  the  time  when  the  com- 
pensation shall  be  due,  and  if  they  so  fix  the  time,  th 
agreement  will  be  conclusive.  In  the  absence  of  such 
an  agreement,  however,  the  agent's  compensation  will 
not  usually  be  considered  to  be  earned  until  he  has 
fully  completed  his  undertaking. 

If  the  agent  has  done  all  that  he  undertook  to  do,  he 
is  entitled  to  his  compensation  even  though  the  prin- 
cipal received  no  benefit,  or  failed  or  refused  to  avail 
himself  of  the  advantages  secured.  Thus  a  broker  em- 
ployed to  effect  a  sale  of  property  is  entitled  to  his  com- 
mission when  he  has  found  a  purchaser  ready,  willing 
and  able  to  buy  on  the  proposed  terms,  even  though  I 
principal  does  not,  or  cannot,  through  defective  title  or 
otherwise,  complete  the  sale. 

See  post  §  ;  Gelatt  v.  Ridge,  117  Mo.  553,  23  S.  W.  Rep.  8S2, 

38  Am.  St.  Rep.  683;  Barthell  t.  Peter,  88  Wis.  316,  60  N.  W.  Rep. 
429,  43  Am.  St.  Rep.  906;  Wray  v.  Carpenter,  16  Colo.  271,  27  Pac.  Rep. 
248,  25  Am.  St.  Rep.  265;  Wilson  v.  Mason,  158  111.  304,  42  N.  E.  Rep. 
134,  49  Am.  St  Rep.  162. 

It  is  entirely  competent  for  the  parties  to  agree  that 
the  agent  shall  be  paid  only  in  case  he  accomplishes  a 
certain  result;  and  if,  without  the  fault  of  the  princi- 
pal, he  fails  to  accomplish  that  result,  he  will  not  be 
entitled  to  any  compensation. 

See  Hale  r.  Kumler,  29  C.  C.  A.  67,  54  U.  S.  App.  685,  85  Fed. 
Rep.  161;  Idler  v.  Borgmeyer,  13  C.  C.  A.  198,  65  Fed.  Rep.  910; 
Mattingly  v.  Pennie.  105  Cal.  514,  39  Pac.  Rep.  200,  45  Am.  St.  Rep. 
87;  Butler  v.  Baker.  17  R.  I.  582,  23  Atl.  Rep.  1019,  33  Am.  St  Rep. 
897. 


116  DUTIES    OF    PRINCIPAL    TO    AGENT.       [§§  218-219. 

§  218.  Where  authority  terminated  by  princi- 
pal.— Where  the  employment  was  merely  at  will,  and 
not  for  a  definite  time,  the  principal  may  terminate  it 
at  any  time;  in  which  case  the  agent  will  be  entitled  to 
compensation  for  any  services  which  he  has  already  per- 
formed, and  which  the  principal  has  accepted.  The 
principal  cannot,  however,  revoke  the  authority  to  es- 
cape payment  of  compensation  where  the  undertaking 
has  been  substantially  performed,  and  the  agent  is  upon 
the  very  point  of  completing  it. 

See  Sibbald  v.  The  Iron  Co.,  83  N.  Y.  378,  38  Am.  Rep.  441,  Cas. 
Ag.  301;  Warren  Chemical  Co.  v.  Holbrook,  118  N.  Y.  586,  23  N.  E. 
Rep.  908,  16  Am.  St.  Rep.  788. 

§  219.    Where  authority  wrongfully  revoked. 

— Where  the  agent  has  been  employed  for  a  definite 
time,  and  his  authority  is  wrongfully  revoked  before 
that  time  has  expired,  he  has  usually  his  choice  of  three 
remedies: 

1.  He  may  treat  the  contract  as  rescinded,  and 
bring  an  action  at  once  to  recover  without  reference  to 
the  contract,  the  reasonable  value  of  the  services  al- 
ready rendered,  less  any  amount  already  paid  him. 

2.  He  mav  treat  the  contract  as  in  force  but 
broken,  and  bring  an  action  at  once  to  recover  damages 
for  the  probable  loss  which  he  has  sustained  by  its  vio- 
lation— i.  e.,  the  damages  based  upon  the  reasonable 
expectation  of  his  finding  other  employment. 

3.  He  mav  treat  the  contract  as  in  force  but  broken 
and  wait  until  the  expiration  of  the  term,  and  then  re- 
cover damages  for  the  actual  loss  which  he  has  sus- 
tained by  its  violation. 

He  cannot  pursue  all  of  these  remedies,  and  a  recov- 
ery upon  one  will  bar  a  recovery  upon  another. 

See  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285,  Cas.  Ag.  526; 
Sutherland  v.  Wyer,  67  Me.  64,  Mechem's  Cas.  Damages,  458;   Olm- 


§§219-221.]       DUTIES    OF    PRINCIPAL    TO    AGENT.  117 

stead  v.  Bach,  78  Md.  132,  27  Atl.  Rep.  501,  44  Am.  St.  Rep.  273,  Cas. 
Damages,  464;  Boland  v.  Glendale  Quarry  Co.,  127  Mo.  520,  30  S.  W. 
Rep.  151,  Cas.  Damages,  468;  Hamilton  v.  Love,  152  Ind.  641,  71  Am. 
St.  Rep.  384;  James  v.  Allen  Co.,  44  Ohio  St.  226,  58  Am.  Rep.  821. 
In  Alabama  and  a  few  other  States,  there  may  be  a  recovery  of 
wages  on  the  theory  of  constructive  service.  Liddell  v.  Chidester, 
84  Ala.  508,  4  So.  Rep.  426,  5  Am.  St.  Rep.  387,  Cas.  Ag.  535,  Mechem's 
Cases  on  Damages,  460.  In  Minnesota  a  peculiar  ruling  is  made 
permitting  much  the  same  result  as  that  reached  in  Alabama,  though 
upon  a  different  theory.  McMullan  v.  Dickinson  Co.,  60  Minn.  156, 
51  Am.  St.  Rep.  511,  62  N.  W.  Rep.  120,  Mechem's  Cas.  on  Damages, 
462.  But  the  weight  of  authority  is  opposed  to  these  views,  and 
permits  a  recovery  of  damages  for  breach  of  contract  only.  See 
cases  cited  above. 

§  220.    Agent's  duty  to  mitigate  his  damage. 

— It  is  the  duty  of  an  agent  wrongfully  discharged  be- 
fore the  expiration  of  his  term,  to  use  reasonable  dili- 
gence to  obtain  other  employment  of  a  like  kind,  and 
thus  reduce  his  damage  as  far  as  possible;  but  he  is 
not  obliged  to  take  employment  of  a  different  kind,  or 
go  to  a  different  place  to  find  it. 

See  Harrington  v.  Gies,  45  Mich.  374;  Strauss  v.  Meertief,  64  Ala. 
299,  38  Am.  Rep.  8;  Sutherland  v.  Wyer,  67  Me.  64,  Cas.  Damages 
458. 

The  burden  of  proof  is  upon  the  employer  to  show 
that  the  agent  might  have  found  such  other  employ- 
ment and  failed  to  do  so. 

See  Farrell  v.  School  District,  98  Mich.  43;  Allen  v.  Whitlark,  99 
Mich.  492. 

§221.  "Where  authority  rightfully  revoked  — 
Where,  though  employed  for  a  definite  term,  the  agent's 
authority  has  been  rightfully  revoked  before  the  expira- 
tion of  that  term,  as  because  of  his  misconduct  or 
breach  of  duty,  it  is  held,  in  many  cases,  that  he  cannot 
recover  anything.  Where  his  misconduct  was  treach- 
erous,  wilful  or  malicious,  this  holding  is  doubtl 
right,  but  the  true  rule  in  other  casi-s  seems  to  be  that 


118  DUTIES    OF    PRINCIPAL    TO    AGENT.       [§§  221-223. 

if,  notwithstanding  his  misconduct,  his  services  have 
been  of  some  substantial  value  to  the  principal,  over 
aud  above  the  damage  sustained  by  the  principal  from 
his  misconduct,  the  agent  may  recover  such  excess. 

See  Wadsworth  v.  Adams,  138  U.  S.  380,  34  L.  ed.  984;  Sea  v. 
Carpenter,  16  Ohio  412;  Vennum  v.  Gregory,  21  Iowa  326;  Branuan 
v.  Strauss,  75  111.  234;  Sumner  v.  Reicheniker,  9  Kan.  320.  See 
also  Massey  v.  Taylor,  5  Coldw.  (Tenn.)  447;  Lawrence  r.  Gullifer, 
38  Me.  532;   Carroll  v.  Welch,  26  Tex.  147. 

§  222.  Where  authority  terminated  by  operation 
of  law. — Where  the  authority  is  terminated  by  opera- 
tion of  law — as  by  reason  of  the  death  or  insanity  of 
one  of  the  parties — no  damages  for  the  revocation  can 
ordinarily  be  recovered. 

See  Griggs  v.  Swift,  82  Ga.  392,  14  Am.  St.  Rep.  176,  5  L.  R.  A. 
405,  Cas.  Ag.  537.  But  compare  Hughes  v.  Gross,  166  Mass.  61,  55 
Am.  St.  Rep.  375. 

§  223.  Where  agent  abandons  his  undertaking. — 
— Where  the  agent  abandons  his  undertaking,  and  the 
employment  was  at  will,  merely,  he  may  recover  for  the 
services  already  rendered.  If,  however,  having  agreed 
to  serve  for  a  definite  time,  the  agent  abandons  his  un- 
dertaking without  cause,  before  the  expiration  of  that 
time,  it  is  held,  in  many  cases,  that  he  can  recover 
nothing.  But  a  more  liberal  rule  prevails  in  many 
States,  which  enables  the  agent,  in  such  cases,  to  recover 
the  reasonable  value  of  the  services  rendered,  not  ex- 
ceeding the  contract  price,  after  deducting  damages  for 
whatever  loss  the  principal  may  have  sustained  by 
reason  of  the  abandonment. 

See  Stark  v.  Parker,  2  Pick.  267,  13  Am.  Dec.  425,  Mechem'a  Cas. 
Damages,  470;  Diefenback  v.  Stark,  56  Wis.  462,  43  Am.  Rep.  719; 
Timberlake  v.  Thayer,  71  Miss.  279,  24  L.  R.  A.  231  and  note;  Brit- 
ton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713,  Mechem's  Cas.  Dam- 
ages, 473;    Allen  v.  McKibbin,  5  Mich.  449;    McClay  v.  Hedge,  18 


§§  223  226.]       DUTIES    OF    PRINCIPAL    TO    AGENT.  119 

Iowa  6G;  Pan  ell  v.  McComber,  11  Neb.  209;  Duncan  v.  Baker,  21 
Kan.  99;  Carroll  v.  Welch,  26  Tex.  147;  Coe  v.  Smith,  4  Ind.  79,  58 
Am.  Dec.  618;  Downey  v.  Burke,  23  Mo.  228;  Steeples  v.  Newton,  7 
Orug.  110.  UIJ  Am.  Rep.  705. 

§  224.  Where  agent  acted  for  two  principals. — 
— Where  an  agent,  without  the  full  knowledge  and  con- 
sent of  both  principals,  has  assumed  to  act  as  agent  for 
both  parties  in  the  same  transaction,  the  law  docs  not 
permit  him  to  recover  compensation  from  either  party; 
but  he  may  have  compensation  from  both  parties  if  his 
double  employment  was  known  and  assented  to  by  both 
principals. 

See  Bell  v.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep.  528,  Cas.  Ag. 
538;  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  Cas.  Ag.  12;  Mc- 
Donald v.  Maltz,  94  Mich.  172,  53  N.  W.  Rep.  1058,  34  Am.  St.  Rep. 
331;  Rice  v.  Davis,  136  Pa.  439,  20  Atl.  Rep.  513,  20  Am.  St.  Rep.  931. 

If  the  commissions  have  been  paid  in  ignorance  of  the  double 
agency,  they  may  be  recovered.  Cannell  v.  Smith,  142  Pa.  25,  21 
Atl.  Rep.  793,  12  L.  R.  A.  395;  Jansen  v.  Williams,  36  Neb.  869,  55 
N.  W.  Rep.  279,  20  L.  R.  A.  207. 

The  case  in  which  the  agent,  e.  g.,  a  broker,  was  acting  as  a  mere 
"middle-man,"  is  also  an  exception  to  the  rule  forbidding  compensa- 
tion from  both  principals.     See  post  §  259. 

§  225.  Where  agent  violated  his  trust. — An  agent 
who  is  guilty  of  fraud  or  betrays  his  trust  or  violates 
his  duty  by  allowing  his  own  interests  to  interfere  with 
those  of  his  principal,  cannot  recover  compensation. 

See  ante  §  167;  McKinley  v.  Williams,  20  C.  C.  A.  312,  36  U.  S. 
App.  749,  74  Fed.  Rep.  94;  Hofflin  v.  Moss,  14  C.  C.  A.  450.  32  U.  S.  App. 
200,  67  Fed.  Rep.  440;  Shaeffer  v.  Blair,  149  U.  S.  218,  37  L.  ed.  721; 
Hall  v.  Grambill,  34  C.  C.  A.  190,  92  Fed.  Rep.  32. 

§  220.  Where  agency  unlawful.— The  agent  cannot 
recover  compensation  for  the  doing  of  that  which  was 
unlawful  to  be  done.  Thus  a  broker  unlawfullv  doing 
business  without  a  license  cannot  recover  commissions. 
And   a  broker   who  has   been  employed   in   furthering 


11 


11*0  DUTIES    OF    PRINCIPAL    TO    AGENT.      [§§  226-230. 

gambling   transactions   or   unlawful   dealings   in   "fu- 
tures," cannot  recover  commissions. 

See  ante  §  33;  Buckley  v.  Huruason,  50  Minn.  195,  52  N.  W.  Rep. 
385,  36  Am.  St.  Rep.  637,  16  L.  R.  A.  423;  Venning  v.  Yount,  62  Kan. 
217,  61  Pac.  Rep.  803,  50  L.  R.  A.  103;  Harvey  v.  Merrill,  150  Mass. 
1,  22  N.  E.  Rep.  49,  5  L.  R.  A.  200;  Pope  v  Hanke,  155  111.  617,  40 
N.  E.  Rep.  839,  28  L.  R.  A.  568;  Jemison  v.  Citizens'  Sav.  Bank, 
122  N.  Y.  135,  25  N.  E.  Rep.  264,  9  L.  R.  A.  708. 

§227.  "Where  extra  duties  required. — An  agent 
employed  at  a  regular  salary  cannot  recover  extra  com- 
pensation because  additional  duties  of  the  same  kind 
are  required  of  him,  unless  there  was  an  express  prom- 
ise to  pay  such  extra  compensation. 

See  Ross  v.  Hardin,  79  N.  Y.  84;  Pew  v.  Gloucester  Bank,  130 
Mass.  391. 

§  22S.  Where  agent  holds  over.  — Where  an  agent 
has  been  serving  at  a  fixed  compensation  for  a  definite 
period,  and  continues  after  the  expiration  of  that  pe- 
riod without  any  new  contract,  the  law  will  presume 
that  he  has  continued  for  another  like  period,  and  at 
the  same  compensation. 

See  Wallace  v.  Floyd,  29  Pa.  184,  72  Am.  Dec.  620,  Cas.  Ag.  525; 
Standard  Oil  Co.  v.  Gilbert,  84  Ga.  714,  8  L.  R.  A.  410,  Cas.  Ag.  273. 

§229.  Recoupment  by  principal. — In  an  action 
brought  by  the  agent  for  the  recovery  of  his  compensa- 
tion, the  principal  may  recoup  any  damages  he  may 
have  sustained  by  reason  of  the  agent's  failure  to  per- 
form his  duty  in  the  execution  of  his  authority. 

See  Nashville  R.  R.  Co.  v.  Chumley,  6  Heisk.  (Tenn.)  327;  Mobil* 
Ry.  Co.  v.  Clanton,  59  Ala.  392,  31  Am.  Rep.  15. 

2.     Rc-irnbursement  and  Indemnity  of  Agent. 

§230.  Agent's  right  to  re-imbursement. — The 
agent  is  entitled  to  be  re-Jiul.iirsed  by  the  principal 
for  all   of  his   advances,  expenses  and  disbursements, 


§§230-232.]       DUTIES    OF    PRINCIPAL    TO    AGENT.  121 

made  in  the  course  of  hia  employment,  on  account  of  or 
for  the  benefit  of  his  principal,  if  they  were  properly 
and  reasonably  incurred,  and  were  not  rendered  neces- 
sary by  the  default  of  the  agent. 

See  Merrill  v.  Rokes,  4  C.  C.  A.  433,  12  U.  S.  App.  183,  54  Fed. 
Rep.  450;  Bibb  v.  Allen,  149  U.  S.  481,  37  L.  ed.  819;  Perin  v.  Par- 
ker, 126  111.  201,  18  N.  E.  Rep.  747,  2  L.  R.  A.  336. 

§231.  Agent's  right  to  indemnity. — The  agent  is 
also  entitled  to  be  indemnified  by  the  principal  for  any 
loss  or  liability  which  the  agent  may  sustain  by  reason 
of  his  performing,  at  the  direction  of  the  principal,  any 
act  which  is  not  manifestly  illegal  and  wjiich  the  agent 
did  not  know  to  be  wrong.  In  such  cases  the  law  im- 
plies a  promise  by  the  principal  to  indemnify  the  agent. 

See  Bibb  v.  Allen,  149  U.  S.  481,  37  L.  ed.  819. 

§232.    None    where    act  unlawful. — But  no 

promise  to  indemnify  will  be  implied,  and  even  an  ex- 
press promise  will  not  be  enforced,  if  the  act  was  one 
which  the  agent  knew  or  must  be  presumed  to  have 
known  was  unlawful. 

See  Moore  v.  Appleton,  26  Ala.  633,  34  Ala.  147,  73  Am.  Dec.  44S; 
Coventry  v.  Barton,  17  Johns.  142,  8  Am.  Dec.  376;  D'Arcy  v.  Lyle, 
5  Binney  441,  Cas.  Ag.  542;  Pope  t.  Hanke,  155  111.  617.  40  N.  E. 
Rep.  839.  28  L.  R.  A.  568;  Jemison  v.  Citizens  Sar.  Bank,  122  N.  Y. 
135,  25  N.  E.  Rep.  264,  9  L.  R.  A.  708. 


1  .►.> 


DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON. 


[§  233. 


CHAPTER   XIV. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THE   PRINCIPAL  TO 

THIRD   PERSONS. 


! 


233.  In  general. 

234.  "What  questions  arise. 

I.  LIABILITY      FOR     AGENT'S    CON- 

TRACTS. 

235.  In  general. 

a.  The  disclosed  principal. 
236-237.  Principal  liable,  when. 

b.  The  liability  of  the  un- 

disclosed principal. 

238.  In  general. 

239.  Real       principal        liable 

when  discovered. 

240.  Exceptions. 

241.  When    right   to    be    exer- 

cised. 

242.  To    what    contracts    rule 

applies. 

243.  Agent  also  remains  liable. 

II.  RESPONSIBILITY    FOR  AGENT'S 

STATEMENTS,     ETC. 

244-245.  What  statements,  etc., 
bind  the  principal. 


III.    RESPONSIBILITY       FOR     MAT- 
TERS    BROUGHT     TO     KNOWL- 
EDGE OF   AGENT. 

§  246-247.  When  notice  to  agent 
is  notice  to  principal. 

248.  Basis  of  rule. 

249.  Notice  to  sub-agent. 

250.  Notice  to   one  of  several 

agents. 

251.  Notice  to   agents   of   cor- 

porations. 

IV.   LIABILITY        FOR     AGENT'S 
TORTS   AND  CRIMES. 

252.  Foundation  of  liability  for 

agent's  torts. 
253-257.  Principal's        liability 
for  agent's  torts. 

258.  Limitations. 

259.  Principal's     liability     for 

agent's  criminal  acts. 


§  233.  In  general. — This  subdivision  of  the  general 
subject  is  naturally  one  of  the  most  important  ones.  It 
certainly  is  the  one  most  frequently  arising.  The  rea- 
son for  this  is  obvious.  The  very  purpose  of  the  crea- 
tion of  the  agency  is  to  enable  the  principal  to  put  the 
agent  forward  to  act,  contract,  speak,  deal  and  be  dealt 
with,  in  the  place  and  stead  of  the  principal  in  person. 
The  question,  therefore,  of  the  liability  which  the  prin- 
cipal incurs  while  thus  acting  through  the  intervention 
of  his  agent  must  constantly  and  necessarily  present 
itself. 


§§234-236.]   DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  123 

§234.  What  questions  arise. — This  question  of  the 
liability  of  the  principal  to  third  persons  presents  four 
chief  aspects — 

1.  His  liability  upon  contracts  made  by  the  agent. 

2.  His  responsibility  for  the  agent's  statements, 
admissions  or  representations. 

3.  His  responsibility  for  matters  brought  to  his 
agent's  knowledge. 

4.  His  liability  for  his  agent's  torts  and  crimes. 

I.      LIABILITY    FOR    ACEXT'S   CONTRACTS. 

§235.  In  general. — The  question  of  the  liability  of 
the  principal  for  the  contracts  of  his  agent  may  aris- 
(a)  where  the  principal  at  the  time  of  making-  the  con- 
tract was  disclosed  and  known  to  exist,  or  (b)  where 
the  principal  at  the  time  was  undisclosed;  and  separate 
consideration  must  be  given  to  each  aspect. 

It  is  only  with  respect  of  contracts  that  the  distinc- 
tion between  the  disclosed  and  the  undisclosed  prin- 
cipal becomes  material. 

a.     The  Liability  of  the  Disclosed  Principal. 

§230.  Principal  liable  when.— It  is  not  the  pur- 
pose here  to  inquire  concerning  the  existence  of  the  au- 
thority. The  question  of  how  authority  may  be  con- 
ferred and  upon  whom,  has  already  been  discussed.  As- 
Burning  that  the  relation  of  principal  and  agent  exists, 
the  question  becomes,  What  contracts  of  the  agent  are 
binding  upon  the  principal?  To  this  question  the  an- 
swer is:  A  principal  is  liable  to  third  persons  for  all 
the  lawful  contracts  of  his  agent,  made  for  the  princi- 
pal and  in  his  behalf,  while  the  agent  was  acting  within 
the  scope  of  his  authority  and  in  the  course  of  his  un- 
dertaking; or  which  have  subsequently  been  ratitied  by 
the  principal  with  full  knowledge  of  the  facts. 

Stated  negatively,  the  principal   is  not  liable  upon 


124  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§236-238. 

contracts  made  by  the  agent  not  within  the  scope  of 
the  authority  and  not  subsequently  ratified. 

See  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516, 
Cas.  Ag.  408;  Pickert  v.  Marston,  68  Wis.  465,  60  Am.  Rep.  876, 
Cas.  Ag.  411;  Komorowski  v.  Krumdick,  56  Wis.  23,  Cas.  Ag.  413; 
Jackson  v.  National  Bank,  92  Tenn.  154,  20  S.  W.  Rep.  802,  IS  L.  R. 
A.  663,  Cas.  Ag.  415;  Brockway  v.  Mullin,  46  N.  J.  L.  448,  50  Am. 
Rep.  442,  Cas.  Ag.  419;  Vescelius  v.  Martin,  11  Colo.  391,  Cas.  Ag. 
422;  New  York  Iron  Mine  v.  First  Nat.  Bank,  39  Mich.  644,  Cas.  Ag. 
423. 

§  237.     By  the  term  "scope  of  the  authority"  is 

meant  the  extent  of  the  powers  expressly  or  impliedly 
conferred  upon  the  agent.  It  includes  not  only  those 
actually  given  but  those  apparently  conferred.  It  em- 
braces those  which  custom  may  confer.  It  includes, 
also,  in  a  given  case,  those  powers  whose  existence,  as 
against  the  party  interested,  the  principal  is  estopped 
to  deny.  It  embraces,  finally,  all  those  powders  whose 
exercise,  though  not  originally  authorized,  has  been 
subsequently  ratified  with  a  full  knowledge  of  the  facts. 

See  ante  §  132  et  seq. 

h.     The  Liability  of  the  Undisclosed  Principal. 

§  238.  In  general. — What  has  thus  far  been  said  in 
this  subdivision  has  had  to  do  with  the  liability  of  the 
principal  who  was  known  to  be  such  at  the  time  of  the 
transaction;  but,  as  has  been  already  intimated,  it  is 
not  always  the  fact  that  the  existence  and  name  of  the 
principal  are  thus  known.  The  principal,  for  some  rea- 
son, may  prefer  to  keep  in  the  background,  or  the  agent, 
without  the  knowledge  or  authority  of  the  principal, 
may  fail  to  disclose  that  he  is  an  agent  and  deal  as 
though  he  were  himself  the  real  party  in  interest. 
What  then  is  the  liability  of  such  a  principal? 

It  must  be  observed  that,  by  the  hypothesis,  there  is 
a  competent  principal  in  existence  who  has  authorized, 
and  is  entitled  to  the  benefits  of  the  act  of  the  agent; 


§§  228-239.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  125 

he  has  simply  not  been  disclosed.  The  ease,  therefore, 
is  radically  unlike  that  presented  in  the  domain  of  rati- 
fication where,  by  the  hypothesis,  then?  was,  at  the  time 
of  the  act,  no  principal  who  had  authorized  it.  This 
distinction  is  not  infrequently  lost  sight  of,  and  the 
two  cases  treated  as  substantially  identical. 

§  239.  Real  principal  liable  when  discovered.  — It 
is  the  general  rule  that  the  real  principal  in  the  trans- 
action, though  undisclosed  at  the  time  of  making  the 
contract,  may  be  held  liable,  when  discovered,  upon  all 
simple  contracts  made  in  his  behalf  by  his  agent,  even 
though  at  the  time  of  making  the  contract  the  party 
dealing  with  the  agent  did  not  know  that  he  was  an 
agent  or  did  not  know  who  his  principal  was,  and  gave 
credit  to  the  agent  supposing  him  to  be  the  principal. 

See  Kayton  v.  Barnett,  116  N.  Y.  625,  Cas.  Ag.  553;  Maxcy  Mfg. 
Co.  t.  Burnham,  89  Me.  538,  36  Atl.  Rep.  1003,  56  Am.  St.  Rep.  436. 

In  such  a  case  the  principal  is  bound  by  the  apparent 
authority  given  to  the  agent,  and  he  can  not  escape  lia- 
bility by  showing  that  he  had  instructed  the  agent  not 
to  do  acts  which  are  within  the  scope  of  his  apparent 
authoritv. 

See  Watteau  v.  Fenwick,  L.  R.,  [1893]  1  Q.  B.  Div.  346,  Cas.  Ag. 
369;  Hubbard  v.  Tenbrook,  124  Pa.  291,  16  Atl.  Rep.  817,  10  Am.  St. 
Rep.  585,  2  L.  R.  A.  823,  Cas.  Ag.  367. 

The  case,  however,  presupposes  that  the  principal  at 
the  time  of  the  contract  was  really  undisclosed.  For  if 
he  were  known  at  the  time  of  the  transaction  and  the 
other  party  nevertheless  elected  to  give  credit  to  the 
agent  only,  he  cannot  afterwards  charge  the  principal. 
Whether  exclusive  credit  was  given  to  the  agent  or  not 
is  usually  a  question  of  fact. 

See  Paterson  v.  Gandasequi,  15  East  62,  Cas.  Ag.  545;  Addison  v. 
Gandasequi,   4  Taunt.    573,   Cas.  Ag.  547;    Thompson  v.   Davenport, 


126  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§  239-240. 

9  B.  &  Cr.  78,  Cas.  Ag.  547;  Raymond  v.  Crown,  etc.,  Mills,  2  Mete. 
(Mass.)  319;  James  v.  Bixby,  11  Mass.  34;  Stehn  v.  Fasnacht,  20 
La.  Ann.  S3;  Brown  v.  Rundlett,  15  N.  H.  360;  Ferguson  v.  McBean 
91  Cal.  63,  14  L.  R.  A.  65;  Heffron  v.  Pollard,  73  Tex.  96,  15  Am.  St. 
Rep.  764. 

The  exemption  of  the  principal,  in  such  a  case,  is 
strengthened  by  the  fact  that  he  has  settled  with  the 
agent  supposing  that  the  third  party  looked  to  the 
agent  only. 

See  Cleveland  v.  Pearl,  63  Vt.  127,  25  Am.  St.  Rep.  748,  Cas.  Ag. 
556;   James  v.  Bixby,  supra. 

§  240.  Exceptions. — To    the   general   rule   thus 

giving  the  other  party  the  right  to  hold  the  undis- 
closed principal  when  discovered,  there  are  two  excep- 
tions:— 

1.  The  principal  can  not  be  held  where,  although  he 
was  not  disclosed  at  the  time  of  the  transaction,  he  has 
since  been  disclosed  and  the  other  party  has  then,  with 
full  knowledge  as  to  the  principal  and  with  power  of 
choice,  deliberately  elected  to  give  credit  to  the  agent 
alone. 

Knowledge  not  only  of  the  existence  but  of  the  name 
of  the  principal  is  necessary,  and  what  the  other  party 
may  have  done  before  he  received  such  knowledge  can- 
not bind  him  as  an  election.  And  even  with  such 
knowledge,  the  mere  presentation  of  a  claim  against 
the  agent  or  even  the  commencement  of  a  suit  against 
him,  will  not,  it  has  been  held,  be  conclusive  evidence 
of  an  election  to  hold  the  agent  only. 

See  Beymer  v.  Bonsall,  79  Pa.  St.  298,  Cas.  Ag.  554;  Curtis  v. 
Williamson,  L.  R.  10  Q.  B.  57. 

2.  The  principal  can  not  be  held  where,  before  the 
other  party  presents  his  claim,  the  principal  has  settled 
with  the  agent*  relying  upon  some  conduct  of  the  other 


§§240-242.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  127 

party  from  which  it  was  reasonable  to   infer-  that  the 
agent  has  already  settled  with  sueli  third  party. 

See  Paterson  v.  Gandasequi,  15  East,  62,  2  Smith  L.  C.  342,  Cas. 
Ag.  545;  Thompson  v.  Davenport,  9  Barn.  &  Cr.  78,  2  Smith  L.  C. 
351,  Cas.  Ag.  547;  Irvine  v.  Watson,  5  Q.  B.  Div.  414,  29  Moak's  Eng. 
Rep.  371,  Cas.  Ag.  550. 

The  American  cases,  so  far  as  they  have  considered  the  subject, 
would  support  the  rule  only  so  far  as  the  *  See  Fradley  v.  Hyland, 
37  Fed.  Rep.  49,  2  L.  R.  A.  749;  Laing  v.  Butler,  37  Hun,  (N.  Y.) 
144;  Thomas  v.  Atkinson,  38  Ind.  248;  Clealand  v.  Walker,  11  Ala. 
1058;  McCullough  v.  Thompson,  45  N.  Y.  Super.  449;  Belneld  v.  Na- 
tional Supply  Co.  189  Pa.  189,  42  Atl.  Rep.  131.  But  the  English  rule 
is  right,  and  will  doubtless  be  followed  in  the  United  States.  See 
23  Am.  L.  Rev.  5G5. 

'  §241.  When  right  to  be  exercised. — The  right  of 
the  other  party  to  so  hold  the  undisclosed  principal 
must  be  exercised  within  a  reasonable  time  after  the 
principal  is  discovered. 

See  Smethurst  v.  Mitchell,  1  Ell.  &  Ell.  622. 

The  existence  and  identity  of  the  principal  may  be 
shown  by  parol  evidence. 

See  Waddill  v.  Sebree,  88  Va.  1012,  14  S.  E.  Rep.  849,  29  Am.  St. 
Rep.  766. 

§  242.  To  what  contracts  rule  applies. — The  rule 
applies  to  all  simple  contracts,  whether  written  or  un- 
written, and  to  those  required  to  be  in  writing  as  well 
as  to  those  not  so  required;  but  it  does  not  apply  to 
negotiable  instruments,  or  to  instruments  under  seal, 
though  if  the  seal  were  unnecessary,  the  principal  may 
be  held  liable  on  the  consideration,  if  he  has  ratified 
or  accepted  the  benefit  of  the  contract.  In  other  words, 
he  may  be  held  liable  upon  an  implied  contract  to  pay 
for  the  benefit  so  received. 

See  Byington  v.  Simpson,  134  Mass.  169.  45  Am.  Rep.  814,  Cas. 
Ag.  558;  Briggs  v.  Partridge,  64  N.  Y.  357.  21  Am.  Rep.  617.  Cas.  Ag. 


128  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§  242-244. 

436;  Mahoney  v.  McLean,  26  Minn.  415;  Badger  Silver  Min.  Co.  v. 
Drake,  31  C.  C.  A.  378,  88  Fed.  Rep.  48. 

In  Texas  the  rule  does  not  apply  to  conveyances  of  real  estate 
though  not  under  seal:  Sanger  v.  Warren,  91  Tex.  472,  44  S.  W.  Rep. 
477.  66  Am.  St.  Rep.  913. 

Specific  performance  may  be  had  of  a  contract  to  buy  land: 
Waddill  v.  Sebree,  88  Vt.  1012,  14  S.  E.  Rep.  849,  29  Am.  St.  Rep.766. 

§243.  Agent  also  remains  liable. — This  liability 
of  the  undisclosed  principal  is  an  additional,  and  not 
an  exclusive  one;  that  is  to  say,  the  third  person  is 
not  obliged  to  pursue  the  principal  when  discovered. 
He  may  do  so  at  his  option.  The  agent  also  remains 
liable,  and  the  creditor,  if  he  prefers,  may  pursue  him 
because  he  was  the  party  with  whom  he  contracted. 

See  Beymer  v.  Bonsall,  79  Penn.  St.  298,  Cas.  Ag.  554. 

IL      RESPONSIBILITY   FOR   AGENT'S   STATEMENTS,   ETC. 

§  214.    What  statements,  etc.,  bind  the  principal. 

— The  responsibility  of  the  principal  is  net  necessarily 
confined  to  what  the  agent  does:  it  may  in  many  cases 
include  also  what  he  says.  Indeed  the  agent  may  be 
authorized  expressly  and  solely  to  make. statements  or 
representations;  but  even  where  his  chief  duty  is  to  act, 
the  authority  will  include  power  to  say  whatever  natu- 
rally and  appropriately  accompanies,  characterizes  or 
explains  the  thing  done.  The  rule  is  this:  The  state- 
ments, representations  and  admissions  of  the  agent, 
made  while  acting  within  the  scope  of  his  authority — 
(him  fervet  opus,  as  it  is  sometimes  put — and  in  refer- 
ence to  the  subject  matter  of  his  agency  are  admissible 
against  the  principal  if  the  agent's  authority  has  first 
been  shown  by  other  evidence. 

See  Sidney  School  Furniture  Co.  v.  Warsaw  School  District,  122 
Pa.  494,  15  Atl.  Rep.  881,  9  Am.  St.  Rep.  124;  Albert  v.  Mutual 
Life  Ins.  Co.,  122  N.  C.  92,  30  S.  E.  Rep.  327,  65  Am.  St.  Rep.  693; 
Larson  v.  Metropolitan     Street  Ry.  Co.,  110  Mo.  234,  19  S.  W.  Rep. 


§§  244-246.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  129 

416,  33  Am.  St.  Rep.  439;  Adams  Express  Co.  v.  Harris,  120  Ind. 
73,  21  N.  E.  Rep.  340,  16  Am.  St.  Rep.  315,  7  L.  R.  A.  214;  Cleveland, 
etc.,  Ry.  Co.  v.  Closser,  126  Ind.  318,  2G  N.  E.  Rep.  159,  9  L.  R.  A. 
754;  Worthington  v.  Gwin,  119  Ala.  44,  24  So.  Rep.  739,  43  L.  R.  A. 
382. 

§  245.     The  power  to  bind  the  principal  by  what 

is  thus  said  is  implied  because  it  is  a  part  of  tin-  act 
authorized  to  be  done — because  it  tends  to  characterize 
or  explain  it,  or  because  it  is  a  natural  and  appropriate 
accompaniment  of  it.  It  follows,  therefore,  that  the 
power  exists  only  while  the  act  is  being  performed. 
The  agent  has  no  implied  power  to  make  nana  (ions 
concerning  past  transactions.  It  is  only  while  he  is 
acting  within  the  scope  of  his  authority  that  the  state- 
ments are  relevant.  Hence  the  rule  that,  in  order  to  be 
considered  as  made  while  he  was  acting  within  the 
scope  of  his  authority,  the  statements,  representations 
or  admissions  must  be  made  cither  while  the  agent  is 
actually  engaged  in  the  execution  of  his  authority,  or 
so  soon  thereafter  as  to  be  really  a  part  of  the  same 
transaction.  In  other  words,  they  must  constitute  a. 
part  of  the  res  gestae. 

See  Vicksburg,  etc.,  R.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  Cas.  Ag. 
572;  Jammison  v.  Chesapeake,  etc.,  Ry.  Co.,  92  Va.  327,  23  S.  E.  Rep. 
758,  53  Am.  St.  Rep.  813;  Borland  v.  Nevada  Bank,  99  Cal.  89,  33 
Pac.  Rep.  737,  37  Am.  St.  Rep.  32;  Barker  v.  St.  Louis,  etc.,  R.  Co.. 
126  Mo.  143,  28  S.  W.  Rep.  866,  26  L.  R.  A.  843;  Carroll  v.  East  Ten- 
nessee, etc.,  R.  Co.,  82  Ga.  452,  10  S.  E.  Rep.  163,  6  L.  R.  A.  214; 
Giberson  v.  Patterson  Mills  Co.,  174  Pa.  369,  34  Atl.  Rep.  563,  52  Am. 
St.  Rep.  823. 

ni.      RESPONSIBILITY    FOR    MATTERS    BROUGHT    TO    KNOWL- 
EDGE  OF   AGENT. 

§246.  When  notice  to  agent  is  notice  to  prin- 
cipal.— The  question  of  notice  or  knowledge  occupies 
a  large  place  in  our  law.  The  duty  to  take  action  often 
arises  only  upon  notice  of  some  fact  or  condition;  the 


\  30  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§  246. 

obligation  to  make  repairs  or  take  precautions  exists 
often  only  upon  notice  of  their  need;  whether  one  ob- 
tains a  perfect  title  or  a  defeasible  one  depends  in  many 
cases  upon  his  having  or  not  having  notice  of  prior 
liens  or  defen  •es;  etc.  Assuming  that  notice  or  knowl- 
edge might,  in  a  given  case,  affect  the  principal  if  it 
came  to  him  personally,  the  question  at  once  arises,  how- 
will  he  be  affected  by  notice  to  or  knowledge  of  his 
agent?  In  respect  of  this,  the  rule  is,  that  the  law- 
charges  the  principal  with  notice  of  any  fact,  relating 
to  the  subject  matter  of  the  agency,  which  the  agent 
acquires  or  obtains  while  acting  as  such  agent  and 
within  the  scope  of  his  authority.  Many,  but  not  all, 
cases  go  further  and  charge  the  principal  not  only  with 
the  notice  or  knowledge  which  the  agent  acquires  during 
the  agency,  but  also  with  that  which  he  may  previously 
have  acquired  and  then  has  in  mind,  or  which  he  had 
acquired  so  recently  as  to  reasonably  warrant  the  as- 
sumption that  he  then  remembered  it. 

The  English  courts  impute  to  the  principal  the  knowledge  pos- 
sessed by  the  agent  though  he  acquired  it  before  he  became  agent. 
Dresser  v.  Norwood,  17  Com.  B.  (N.  S.)  466;  Rolland  v.  Hart,  L.  R. 
6  Ch.  App.  678.  The  Supreme  Court  of  the  United  States  does  the 
same,  The  Distilled  Spirits  Case,  11  Wall.  367.  The  lower  Federal 
courts  of  course  follow  this  ruling:  Brown  v.  Iron  &  Coal  Co.,  18 
C.  C.  A.  444,  25  U.  S.  App.  679,  72  Fed.  Rep.  96. 

And  it  is  the  rule  sustained  by  the  weight  of  authority:  Con- 
stant v.  University,  111  N.  Y.  604,  7  Am.  St.  Rep.  769,  Cas.  Ag.  560; 
Brothers  v.  Bank,  84  Wis.  381,  54  N.  W.  Rep.  786,  36  Am.  St.  Rep. 
932;  Wilson  v.  Minnesota  Ins.  Ass'n,  36  Minn.  112,  1  Am.  St.  Rep. 
659;  Snyder  v.  Partridge.  138  111.  173,  32  Am.  St.  Rep.  130;  Trentor 
v.  Pothen,  46  Minn.  298,  24  Am.  St.  Rep.  225,  and  note;  Fairfield 
Savings  Bank  v.  Chase,  72  Me.  226,  39  Am.  Rep.  319;  McClelland  v. 
Saul,  113  Iowa  208,  84  N.  W.  Rep.  1034,  86  Am.  St.  Rep.  370. 

Certain  of  the  State  courts  limit  the  rule  to  knowledge  acquired 
during  the  agency.  Thus,  Alabama,  Wheeler  v.  McGuire,  86  Ala. 
398,  5  So.  Rep.  190,  2  L.  R.  A.  808,  Cas.  Ag.  362;  Pennsylvania, 
Houseman  v.  Girard,  etc.,  Ass'n,  81  Penn.  St.  256;    etc. 

Notice  after  the  termination  of  the  agency,  of  course,  does  not 
bind:     Boardman  v.  Taylor,  66  Ga.  638. 


§§246-247.]   DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  131 

The  notice  or  knowledge  which  is  so  to  be  imput  d 
to  tlie  principal  must  relate  to  the  subject  matter  of  the 
agency,  and  not  to  some  other  matter  concerning  which 
the  agent  has  neither  duty  nor  authority.  It  mi  .  ap- 
pear to  be  material,  and  it  must  come  from  such  au 
apparently  authentic  and  reliable  source  that  an  ordi- 
narily prudent  man  would  be  bound  to  give  heed  to  it. 

See  Fairfield  Sav.  Bank  v.  Chase,  72  Me.  226,  39  Am.  Rep. 
Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  Rep.  129,  24  Am.  St.  Rep. 
225;  Congar  v.  Chicago,  etc.,  R.  Co.,  24  Wis.  157,  1  Am.  Rep.  164; 
Shafer  v.  Phoenix  Ins.  Co.,  53  Wis.  361;  Kearney  Bank  v.  Froman, 
129  Mo.  427,  31  S.  W.  Rep.  769,  50  Am.  St.  Rep.  456;  Washington 
Nat.  Bank  v.  Pierce,  6  Wash.  491,  33  Pac.  Rep.  972,  36  Am.  St.  Rep. 
174. 

§  247.    Three  exceptions  to  the  rule  exist:    Such 

notice  will  not  be  charged  to  the  principal — 

1.  Where  it  is  such  as  it  is  the  agent's  duty  to  some 
other  principal  not  to  disclose. 

Thus,  for  example,  much  information  comes  to  an  attorney 
which  it  is  his  duty  to  his  client  not  to  disclose — in  the  language  of 
the  law,  it  is  privileged.  Such  information  will  not  be  imputed 
to  another  client  of  the  attorney,  because  the  law  will  not  require 
him  to  violate  his  duty  to  one  client  in  order  to  perform  what  other- 
wise might  be  his  duty  to  some  other  client.  See  Melms  v.  Pabst 
Brewing  Co.,  93  Wis.  153,  66  N.  W.  Rep.  244,  57  Am.  St.  Rep.  899; 
Akers  v.  Rowan,  33  S.  Car.  451,  12  S.  E.  Rep.  165,  10  L.  R.  A.  705. 

2.  Where  the  agent,  though  nominally  acting  as 
such,  is  really  acting  in  his  own  or  another's  interest 
and  adversely  to  his  principal. 

In  such  a  case,  the  agent  really  ceases  to  be  agent  at  all.  The 
law  does  not  permit  him  to  be  an  agent  in  such  a  case,  and  it  does 
not  presume  that  he  will  perform  a  duty  which  his  adverse  interest 
renders  certain  that  he  will  not  perform.  See  Atlantic  Mills  v.  In- 
dian Orchard  Mills,  147  Mass.  268,  9  Am.  St.  Rep.  698;  Innerarity  v. 
Bank,  139  Miss.  332,  52  Am.  Rep.  710,  Cas.  Ag.  569;  Frenkel  v.  Hud- 
sou,  82  Ala.  158,  60  Am.  Rep.  736;  Dillaway  v.  Butler.  135  Mass. 
479;  Gunster  v.  Scranton  Power  Co.,  181  Pa.  327,  37  Atl.  Rep.  550. 
59  Am.  St.  Rep.  650;  Hickman  v.  Creen,  123  Mo.  165,  29  L.  R.  A.  39; 


132  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [58  247-249. 

Allen  v.  South  Boston  R.  Co.,  150  Mass.  200,  22  N.  B.  Rep.  917,  15 
Am.  St.  Rep.  185,  5  L.  R.  A.  716. 

3.  Where  the  person  who  claims  the  benefit  of  the 
notice  had  colluded  with  the  agent  to  cheat  or  defraud 
the  principal. 

See  National  L.  Ins.  Co.  v.  Minch,  53  N.  Y.  144;  Western  Mortg. 
Co.  v.  Ganzer.  11  C.  C.  A.  371,  23  U.  S.  App.  608,  63  Fed.  Rep.  647; 
Hudson  v.  Randc'ph,  13  C.  C.  A.  402,  23  U.  S.  App.  681,  66  Fed.  Rep. 
216. 

§  248.     Basis  of  rule.— The  rule  that  notice  to 

the  agent  is  notice  to  the  principal  finds  its  origin  in 
the  duty,  already  considered,  resting  upon  the  agent 
to  inform  his  principal  of  all  matters  coming  to  his 
notice  or  knowledge,  concerning  the  subject  matter  of 
the  agency,  which  it  is  material  for  the  principal  to 
know  for  his  protection  or  guidance.  So  far  as  third 
persons  are  concerned,  however,  the  law  will  not  per- 
mit the  principal  to  escape  the  consequences  of  notice 
by  alleging  that  his  own  agent  has  not  performed  his 
duty.  The  rule,  therefore,  does  not  depend  upon 
whether  or  not  the  agent  has  actually  communicated 
his  knowledge  to  the  principal;  the  law  presumes  that 
he  has  done  so  and  charges  the  principal,  although  in 
fact  he  knew  nothing  about  it. 


o 


See  ante  §  189;    Cox  v.  Pearce,  112  N.  Y.  637,  20  N.  E.  Rep.  566, 
3  L.  R.  A.  563. 

§  249.  Notice  to  sub-agent. — Whether  notice  to  a 
sub-agent  is  notice  to  the  principal  depends  upon 
whether  the  sub-agent,  under  the  rules  already  con- 
sidered, is  to  be  regarded  as  the  agent  of  the  principal 
or  of  the  original  agent  only.  If,  having  been  ap- 
pointed with  the  express  or  the  implied  authority  of  the 
principal,  the  sub-agent  is  deemed  the  agent  of  the 
principal,  notice  to  him,  within  the  limits  affecting  any 
agent,  is  notice  to  his  principal ;  otherwise,  it  is  not. 


§§  249-251.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  133 

See  Hoover  v.  Wise,  91  U.  S.  308;  Bates  v.  American  Mortgage 
Co.,  37  S.  Car.  88,  16  S.  E.  Rep.  883,  21  L.  R.  A.  340. 

§250.  Notice  to  one  of  several  agents. — Notice 
to  ODe  of  two  or  more  joint  agents  is  notice  to  the  prin- 
cipal. So  notice  to  one  of  several  but  not  joint  agents 
will  be  notice  to  the  principal  if  it  relates  to  matters 
concerning  which  such  agent  is  under  a  duty  to  disclose. 

See  Wittenbrcck  v.  Parker,  102  Cal.  93,  36  Pac.  Rep.  374,  41  Am. 
St.  Rep.  172;  Fulton  Bank  v.  Canal  Co.  4  Paige  (N.  Y.)  127;  North 
River  Bank  v.  Aymar,  3  Hill   (N.  Y.)   262. 

§  251.  Notice  to  agents  of  corporations. — The  rules 
respecting  notice  are  of  constant  application  in  the 
case  of  corporations. 

See  Johnson  v.  First  National  Bank,  79  Wis.  414,  48  N.  W.  Rep. 
712,  24  Am.  St.  Rep.  722;  Morris  v.  Georgia  Loan  Co.,  109  Ga.  12, 
34  S.  E.  Rep.  378,  46  L.  R.  A.  506;  Hotchkiss  Co.  t.  National  Bank, 
15  C.  C.  A.  284,  37  U.  S.  App.  86,  68  Fed.  Rep.  76;  Cooper  v.  Hill,  36 
C.  C.  A.  402,  94  Fed.  Rep.  582;  Wilson  t.  Pauly,  18  C.  C.  A.  475,  37 
r.  S.  App.  642,  72  Fed.  Rep.  129;  Hamilton  v.  Ins.  Co.,  98  Mich.  535, 
57  N.  W.  Rep.  735,  22  L.  R.  A.  527;  Johnston  Harvester  Co.  v.  Mil- 
ler, 72  Mich.  265,  40  N.  W.  Rep.  429,  16  Am.  St.  Rep.  536;  Home  Ins. 
Co.  v.  Mendenhall,  164  111.  458,  45  N.  E.  Rep.  1078,  36  L.  R.  A.  374. 

But  by  reason  of  the  fact  that  corporations  often 
have  many  agents  with  a  great  variety  of  duties  and 
scattered,  not  infrequently,  over  a  wide  range  of  terri- 
tory, it  is  indispensable  that  the  notice  or  knowledge 
should  be  acquired  or  possessed  while  the  agent  in  ques- 
tion was  acting  as  such,  and  should  relate  to  some  mat- 
ter within  the  scope  of  his  authority. 

See  cases  Nat.  Bank  v.  Clark,  139  N.  Y.  307,  34  N.  E.  Rep.  908, 
36  Am.  St.  Rep.  705;  Commercial  Bank  v.  Burgwyn,  110  N.  Car. 
267,  14  S.  E.  Rep.  623,  17  L.  R.  A.  326;  Phccnix  Ins.  Co.  v.  Flem- 
ming,  65  Ark.  54,  44  S.  W.  Rep.  464,  39  L.  R.  A.  789. 

The  exeex>tions  to  the  general  rule  also  apply  here. 
The  one  most  frequently  applied  is  the  second,  namely, 
that  if  though  sometimes  agent  he  wTa«  not  acting  as 


134  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§  251-252. 

such  in  the  transaction  in  question,  or  though  ostensibly 
agent  was  really  acting  adversely  to  his  principal,  or 
attempting  to  defraud  him,  the  notice  is  not  imputed. 

See  Allen  v.  South  Boston  R.  Co..  150  Mass.  200,  22  N.  E.  Rep. 
917,  15  Am.  St.  Rep.  185,  5  L.  R.  A.  716;  Seaverns  v.  Presbyterian 
Hospital,  173  111.  414,  50  N.  E.  Rep.  1079,  64  Am.  St  Rep.  125;  Ship- 
man  v.  Bank,  126  N.  Y.  318,  12  L.  R.  A.  791;  National  Bank  of  Com- 
merce v.  Feeney,  9  S.  Dak.  550,  70  N.  W.  Rep.  874,  46  L.  R.  A.  732; 
Dorr  v.  Life  Ins.  Co.,  71  Minn.  38,  73  N.  W.  Rep.  635,  70  Am.  St.  Rep. 
309;  Holm  v.  Atlas  Nat.  Bank,  28  C.  C.  A.  297,  55  U.  S.  App.  570, 
84  Fed.  Rep.  119;  Hadden  v.  Dooley,  34  C.  C.  A.  338,  63  U.  S.  App. 
173,  92  Fed.  Rep.  274;  American  Surety  Co.  v.  Pauly,  170  U.  S.  133, 
42  L.  ed.  977;  Thompson,  etc.,  Co.  v.  Capitol  Co.,  12  C.  C.  A.  643,  22 
U.  S.  App.  669,  65  Fed.  Rep.  341. 

IV.      LIABILITY   FOR  AGENT'S  TORTS  AND  CRIMES. 

§252.  Foundation  of  liability  for  agent's  torts. 
— It  very  rarely  happens  that  a  principal  confers  ex- 
press authority  for  the  commission  of  torts,  or  con- 
templates in  any  way  that  they  will  be  committed.  It 
is  verv  rare,  too,  that  the  commission  of  a  tort  can  be 
of  benefit  to  the  principal;  it  is  much  more  likely  to 
work  to  his  disadvantage.  It  is  likely,  therefore,  that 
instead  of  authorizing  a  tort,  the  principal  will  caution 
or  direct  against  it,  and,  in  employing  agents,  will  ex- 
ercise precautions  to  employ  none  but  those  who  will 
avoid  the  commission  of  torts. 

Notwithstanding  all  his  precautions,  however,  and 
although  he  may  have  expressly  forbidden  the  commis- 
sion of  such  acts,  the  principal,  in  many  cases>  is  held 
responsible  in  law  for  torts  committed  by  his  agents. 
He  is  so  held,  in  the  ordinary  case,  not  because  he  di- 
rected the  commission  of  the  tort,  but  because  he  au- 
thorized the  doing  of  some  other  act  in  the  doing  of 
which  the  tort  was  committed,  and  to  which  it  was  an 
attribute  or  incident,  however  much  deplored  and  un- 
expected. 


§§252  254.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  L35 

The  rule  in  this  respect  is  that — 

§  253.  Principal's  liability  for  agent's  torts. — The 
principal  is  liable  to  thin!  persons  in  damages  for  the 
negligence,  trespasses,  frauds,  misrepresentations  and 
deceits  of  his  agent  committed  while  the  agent  was  act- 
ing in  the  execution  of  his  undertaking  and  within  the 
scope  of  his  authority. 

The  older  cases  hold  the  principal  not  liable  for  the 
agent's  wilful  and  malicious  acts,  but  the  modern  rule 
is  that  he  is  liable  for  these  also  if  the  agent  committed 
them  while  he  was  acting  in  the  execution  of  his  agency 
and  within  the  scope  of  his  authority. 

It  is  entirely  immaterial  that  the  principal  did  not 
direct  or  know  of  the  act  complained  of,  or  even  that 
he  disapproved  or  forbade  it,  if  it  were  done  while  the 
agent,  as  has  been  stated,  was  acting  in  the  execution 
of  his  agency  and  within  the  scope  of  his  authority. 

See  Singer  Mfg.  Co.  v.  Rahn,  132  U.  S.  518,  Cas.  Ag.  8;  Wilson  v. 
Owens,  16  Ir.  L.  Rep.  225,  Cas.  Ag.  9;  Bank  v.  Railroad  Co.,  106  N. 
Y.  195,  60  Am.  Rep.  440,  Cas.  Ag.  576;  Friedlander  v.  Railway  Co., 
130  U.  S.  416,  Cas.  Ag.  579;  Southern  Express  Co.  v.  Brown,  67  Miss. 
260,  19  Am.  St.  Rep.  306;  Haskell  v.  Starbird,  152  Mass.  117,  25  N. 
E.  Rep.  14.  23  Am.  St.  Rep.  809;  Cosgrove  v.  Ogden,  49  N.  Y.  255, 
10  Am.  Rep.  361;  Garretzen  v.  Duenckel,  50  Mo.  104,  11  Am.  Rep. 
405;  Phelon  v.  Stiles,  43  Conn.  426;  Fifth  Ave.  Bank  v.  Forty-second 
Street,  etc.,  Ry.  Co..  137  N.  Y.  231,  33  N.  E.  Rep.  378,  33  Am.  St. 
Rep.  712;  Jarvis  v.  Manhattan  Beach  Co.,  148  N.  Y.  652,  43  N.  E. 
Rep.  68.  51  Am.  St.  Rep.  727;  Kansas  City,  etc.,  R.  Co.  v.  Higdon, 
94  Ala.  286,  10  So.  Rep.  282,  33  Am.  St.  Rep.  119;  Eichengreen  v. 
Railroad  Co.,  96  Tenn.  229,  34  S.  W.  Rep.   219,  54  Am.  St.  Rep.  833. 

§  254.   The  act  will  be  deemed  to  have  been  done 

while  the  agent  was  11ms  acting  in  the  execution  of 
his  agency  and  within  the  scope  of  his  authority,  if  it 
were  done  while  the  agent  was  engaged  in  doing  that 
which  he  was  authorized  to  do — if  the  default  com- 
plained of  were  a  part  of,  or  incident  to,  or 
interwoven     With,     the      act     authorized.      Certainly 


136  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§  234-255. 

if  the  thing  complained  of  were  designed  to 
facilitate  or  promote  the  act  authorized,  of  which 
it  thus  formed  a  part — if  it  were  intended  how- 
ever mistakenly,  to  further  the  principal's  business, 
promote  his  welfare  or  protect  his  interests  in  matters 
concerning  which  the  agent  was  then  acting  and  au- 
thorized to  act — it  would  be  within  the  rule.  But  so 
much  as  this  cannot  be  required;  for  it  is  clear,  by  the 
modern  authorities  at  least,  that  though  the  agent  at 
the  moment  may  not  have  had  the  principal's  interests 
in  mind,  though  he  may  have  been  roused  to  resent- 
ment, puffed  up  by  brief  authority,  or  quickened  by 
mere  wantonness,  still  if  he  did  the  act  complained  of 
while  he  was  engaged,  in  the  course  of  his  employment, 
in  the  performance  of  an  act  authorized  to  be  per- 
formed, the  principal  will  be  responsible.  Especially  is 
this  true,  though  it  is  not  the  criterion,  where  the  in- 
strument or  means  of  injury  is  some  implement,  tool, 
machine  or  other  agency  with  which  he  has  been  in- 
trusted by  the  principal  for  the  execution  of  his 
authoritv. 

See  Nashville,  etc.,  R.  Co.  v.  Starnes,  9  Heisk.  (Tenn.)  52,  24  Am. 
Rep.  296;  Chicago,  etc.,  R.  Co.  v.  Dickson,  63  111.  151,  14  Am.  Rep. 
114;  Southern  Express  Co.  v.  Platten,  36  C.  C.  A.  46,  93  Fed.  Rep. 
936. 

§  255.    In  the  case  of  carriers  of  passengers  who 

owe  their  passengers  a  special  duty  of  protection,  and 
others  in  like  situation,  the  rule  may,  perhaps,  be  more 
broadly  stated.  For  if  a  principal  who  owes  such  a 
duty  entrusts  its  performance  to  an  agent,  he  will  not 
only  be  liable  if  it  be  not  performed,  but  he  will  clearly 
be  responsible  if  the  agent  not  only  does  not  perform 
it,  but  adds  to  the  wrong  of  non-performance  the  ag- 
gravation of  vranton,  wilful  or  malicious  injury. 

See  Craker  v.  Chicago,  etc.,  Ry.  Co.,  36  Wis.  657,  17  Am.  Rep. 


§5  255-258.]  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  1 37 

501;  Bryant  v.  Rich,  106  Mass.  180,  8  Am.  Rep.  311;  Stewart  v.  Brook- 
lyn, etc.,  R.  Co.,  90  N.  Y.  588,  43  Am.  Rep.  185;  Chicago,  etc.,  R.  Co. 
v.  Flexman,  103  111.  546,  42  Am.  Rep.  33;  McKinky  v.  Chicago,  etc. 
Ry.  Co.,  44  Iowa  314,  24  Am.  Rep.  748. 

See  the  same  principle  applied  to  telegraph  companies  in  McCord 
v.  Western  Union  Tel.  Co.,  39  Minn.  181,  39  N.  W.  Rep.  315,  12  Am. 
St.  Rep.  636,  and  as  to  the  duty  to  furnish  safe  appliances,  etc.: 
New  York,  etc.,  R.  Co.  t.  O'Leary,  35  C.  C.  A.  562,  93  Fed.  Rep.  737. 

§  256.    The  doctrine  of  ratification  is  constantly 

applied,  and  the  rule  that  he  who  with  knowledge  of 
the  facts  receives  the  fruits  or  takes  the  benefits  of  an 
act,  must  adopt  also  the  liabilities,  is  especially  appli- 
cable. Frequent  illustrations  are  found  in  cases  where- 
in false  representations  have  been  made  by  the  agent 
to  obtain  the  benefit  which  the  principal  has  appro- 
priated. 

See  Mayer  r.  Dean,  115  N.  Y.  556,  22  N.  E.  Rep.  261,  5  L.  R.  A. 
540;  Fairchild  v.  McMahon,  139  N.  Y.  290,  34  N.  E.  Rep.  779.  36  Am. 
St.  Rep.  701;  Meyerhoff  v.  Daniels,  173  Pa.  St.  555,  34  Atl.  Rep.  298, 
51  Am.  St.  Rep.  782;  Baltimore  Trust  Co.  t.  Hambleton,  84  Md.  456, 
36  Atl.  Rep.  597,  40  L.  R.  A.  216;  Hoffman  y.  Mayand,  35  C.  C.  A. 
256,  93  Fed.  Rep.  171;  Kilpatrick  v.  Haley,  13  C.  C.  A.  480,  66  Fed. 
Rep.  133. 

§  257.    The  rule  of  liability  extends  also  to  the 

acts  of  sub-agents,  where  they  have  been  so  appointed, 
within  the  principles  already  considered,  as  to  make 
them  in  law  the  agents  of  the  principal. 

See  Arff  t.  Ins.  Co.,  125  N.  Y.  57,  25  N.  E.  Rep.  1073,  10  L.  R.  A. 
609;  Goode  v.  Ins.  Co.,  92  Va.  392,  23  S.  E.  Rep.  744,  30  L.  R.  A.  842; 
Steele  v.  Ins.  Co.,  93  Mich.  81,  53  N.  W.  Rep.  514,  IS  L.  R.  A.  85. 

§  258.  Limitations.— It  is  not  to  be  assumed,  how- 
ever, that  the  principal  is  responsible  for  every  act 
which  his  agent  may  commit.  If  the  agent  has  finished 
that  which  he  was  authorized  to  do,  or  if  he  leaves  the 
principal's  affairs  to  attend  to  some  matter  of  his  own, 
and  then  commits  the  act  complained  of,  the  principal 
will  not  be  responsible.     So  if,  prompted  by  curiosity 


1 38  DUTIES  OF  PRINCIPAL  TO  THIRD  PERSON.  [§§  258-259. 

or  ill-will,  he  is  where  he  has  no  business  to  be — where 
he  has  no  duty  to  perform,  where  his  authority  does 
not  call  him — if  he  be  engaged  in  that  which  does  not 
concern  his  principal — and  then  commits  the  tort,  the 
principal  is  not  liable. 

See  Mitchell  v.  Crassweller,  13  Com.  B.  237;  Storey  v.  Ashton,  L. 
R.  4  Q.  B.  476;  Maddox  v  Brown,  71  Me.  432,  36  Am.  Rep.  336;  Stone 
v.  Hills,  45  Conn.  44,  29  Am.  Rep.  635;  Adams  v.  Cost,  62  Md.  264, 
50  Am.  Rep.  211. 

§  259.  Principal's  liability  for  agent's  criminal 
acts.— The  principal  may  also  be  held  liable  in  a  civil 
action  for  the  criminal  or  penal  act  of  his  agent  com- 
mitted under  the  same  circumstances.  Thus  the  agent 
may  be  prosecuted  for  assault  and  battery  and  the 
principal  be  held  liable  in  damages,  as  the  result  of  the 
same  act. 

The  principal  will  not  ordinarily  be  criminally  liable 
unless  he  has,  in  some  way,  participated  in,  counte- 
nanced or  approved  the  act;  but  he  may  become  liable 
to  a  penalty  for  permitting  his  agent  to  perform  acts 
which  a  statute  has  imposed  a  penalty  for  performing. 
If,  for  example,  a  statute  forbids,  under  penalty,  the 
sale  of  liquors  to  minors,  or  the  keeping  open  of  saloons 
on  Sunday,  the  principal  will  be  liable  for  the  penalty 
if  the  forbidden  act  be  done  by  the  agent,  even  though 
the  principal  had  no  knowledge  of  it. 

See  State  v.  Kittelle,  110  N.  C.  560,  28  Am.  St.  Rep.  698;  People 
v.  Roby,  52  Mich.  577,  50  Am.  Rep.  270;  State  v.  Armstrong,  106 
Mo.  395,  16  S.  W.  Rep.  604,  27  Am.  St.  Rep.  361;  Hall  v.  Norfolk  & 
West.  R.  Co.,  44  W.  Va.  36,  28  S.  E.  Rep.  754,  67  Am.  St.  Rep.  757; 
Commonwealth  v.  Stevens,  153  Mass.  421,  26  N.  E.  Rep.  992,  25  Am. 
St.  Rep.  647,  11  L.  R.  A.  357;  Commonwealth  v.  Joslin,  158  Mass. 
482,  33  N.  E.  Rep.  653,  21  L.  R.  A.  449. 


§§  260-262.]     DUTIES  OF  THIRD   PERSONS  TO  AGENT. 


139 


CHAPTER  XV. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO 

THE   AGENT. 


§  260.  In  general. 

1.  In  Contract. 

261.  Agent  usually  no  right  of 

action. 

262.  Sealed  instruments  or  ne- 

gotiable        instruments 
made  in  agent's  name. 


§      3.  Contracts     made     without 
disclosing  principal,  etc. 
264    What     defences     may     be 
made. 

2.  In  Tort. 
265.  What    actions    maintaina- 
ble. 


§  260.  In  general. — The  question  of  the  liability  of 
the  third  person  to  the  agent  may  present  the  same  two 
aspects  which  have  been  noticed  in  the  preceding  sub- 
divisions, namely,  the  liability:  1.  In  Contract.  2.  In 
Tort. 

1.     In  Contract. 

§261.  Agent  usually  no  right  of  action. — The 
agent  usually  has  no  right  of  action  against  third  per- 
sons upon  contracts  made  by  him  with  them  for  his  prin- 
cipal. His  duty  is,  in  general,  as  has  been  seen,  to  act  in 
the  name  as  well  as  for  the  benefit  of  his  principal ;  and 
where  he  has  done  so,  the  rights  of  action  must  of  course 
accrue  to  th,e  principal. 

Exceptional  cases,  however,  may  arise  which  require 
exceptions  to  the  rule. 

§  262.  Sealed  instruments  or  negotiable  instru- 
ments made  in  agent's  name.— Thus,  if,  though  acting 
for  the  principal,  the  agent  makes  a  contract  under  seal 
in  his  own  name,  or  if  he  takes  a  negotiable  instrument 
payable  to  himself  alone,  the  action  must  be  brought 
in  the  name  of  the  agent,  though  the  recovery  will  be 
for  the  benefit  of  the  principal. 


140  DUTIES  OF  THIRD  PERSONS  TO  AGENT.    [§§  263-265. 

§  263.  Contracts  made  without  disclosing  princi- 
pal, etc. — So  in  other  cases  than  those  mentioned  in  the 
preceding  section,  if  the  agent  makes  a  contract  without 
disclosing  his  principal,  or  if  he  makes  a  written  con- 
tract in  his  own  name,  the  action  may  be  brought  in  the 
name  of  the  agent  because  it  was  made  in  his  name. 

See  Deitz  v.  Insurance  Co.,  31  W.  Va.  851,  8  S.  E.  Rep.  616,  13 
Am.  St.  Rep.  909;  Carter  v.  Southern  Ry.  Co.,  Ill  Ga.  38,  50  L.  R. 
A,  354. 

But  in  cases  other  than  those  referred  to  in  the  pre- 
ceding section  this  right  of  action  in  the  agent  is  usually 
not  exclusive.  Because  the  contract  was  made  for  the 
principal,  he  may  ordinarily  enforce  in  his  own  name 
or  permit  the  agent  to  sue.  And  where  the  principal 
may  sue  (a  matter  to  be  discussed  more  fully  in  the 
following  chapter),  his  right  is  paramount,  and  he  may 
always  sue  to  the  exclusion  of  the  agent,  unless  the 
aeent  had  some  beneficial  interest  in  the  contract. 

See  Rhoades  v.  Blackiston,  106  Mass.  334,  8  Am.  Rep.  332,  Cas. 
Ag.  584;  Rowe  v.  Rand,  111  Ind.  206,  Cas.  Ag.  257;  Thompson  v. 
Kelly,  101  Mass.  291,  3  Am.  Rep.  353,  Cas.  Ag.  653;  Wilson  v. 
Groelle,  83  Wis.  530,  53  N.  W.  Rep.  900. 

§264.     What  defences  may  be  made.— When  the 

agent  sues  in  his  own  name,  the  other  party  may  ordi- 
narily make  any  defence  against  the  agent  which  he 
may  have,  either  against  the  agent  or  against  the  prin- 
cipal in  whose  behalf  the  action  is  brought. 

See  Gibson  v.  Winter,  5  B.  &  Ad.  96;  Gardner  v.  Allen,  6  Ala. 
187,  41  Am.  Dec.  45.  Set  off  of  claim  against  the  principal  cannot 
be  made  if  would  defeat  agent's  right  to  reimbursement  for  ad- 
vances: Young  v.  Thurber,  91  N.  Y.  388. 

2.     In  Tort. 

§  205.  "What  actions  maintainable. — The  agent  may 
sue  third  persons  in  tort  for  injuries  done  by  them  to 
property  of  the  principal  confided  to  the  agent's  posses- 


§265.]  DUTIES  OF  THIRD   PERSONS  TO  AGENT.  141 

sion — certainly  wherever  he  has  a  special  property  in 
the  goody,  possibly  in  any  case. 

See  Moore  v.  Robinson,  2  Barn.  &  Adol.  817,  22  Eng.  Com.  L.  344. 
Compare  I  ick  v.  Jerome,  7  Cow.   (N.  Y.)   294;    Pullman  Car 

Co.  v.  Gavin,  93  Tenn.  53,  23  S.  W.  Rep.  70,  21  L.  R.  A.  298. 

He  may  also  recover  of  third  persons  in  tort  for  frauds 
or  deceits  practiced  by  them  upon  him  while  he  was  en- 
gaged in  making  contracts  with  them  on  the  principal's 
account,  and  which  have  rendered  him  liable  to  his  prin- 
cipal. 

He  may  also  recover  of  them  for  damages  caused  by 
their  wrongfully  procuring  his  dismissal  by  his  princi- 
pal; and  for  slander  or  other  wrong  whereby  they  de- 
prive him  of  his  right  to  earn  the  stipulated  compensa- 
tion or  commission. 

Seo  Lucke  v.  Clothing  Cutters  Assembly,  77  Md.  396,  19  L.  R.  A. 
x08;  Raycroft  v.  Tayntor,  68  Vt.  219,  33  L.  R.  A.  225;  Whittemore 
v.  Weiss,  33  Mich.  318;  Perkins  v.  Pendleton,  90  Me.  166,  38  Atl.  Rep. 
96,  60  Am.  St.  Rep.  252. 


142       DUTIES  OF  THIRD  PERSON  TO  PRINCIPAL.  [§§  266-267. 


CHAPTER  XVI. 

OF  THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO 

THE  PRINCIPAL. 


§  266,  In  general. 

1.  In  Contract. 

267.  What   contracts    principal 

may  enforce. 

268.  "What  defences  open. 

269.  Right  to  follow  and  recov- 

er money  or  property. 


§  270.  Right    to    rescind     unau- 
thorized dealings. 
2.  In  Tort. 

271.  Right  to  recover  damages 

for  collusion. 

272.  Recovery      for       enticing 

agent     away,    disabling 
him,  etc. 


§  266.  In  general. — The  question  of  the  duties  and 
liabilities  of  third  persons  to  the  principal,  presenting 
the  same  general  aspects  as  the  preceding  ones,  may  be 
considered  under  the  same  classification:  1.  In  Con- 
tract, and  2.   In  Tort, 

1.     In  Contract. 

§267.  What  contracts  principal  may  enforce. — 
The  principal  may  enforce  against  third  persons  all  law- 
ful contracts  made  in  his  own  name  with  them  by  his 
agent.  This  is,  of  course,  the  ordinary  and  familiar 
case.  Here  the  principal  will  be  disclosed  and  the  con- 
tract will  be  made  in  his  name  and  in  his  behalf. 

He  may  also  show  himself  to  be  the  principal  and 
enforce  contracts,  whether  written  or  unwritten,  made 
on  his  behalf  with  them  by  his  agent,  though  he  was  not 
disclosed  at  the  time  of  the  contract  and  the  contract 
was  made  in  the  agent's  name,  except  in  the  cases  men- 
tioned in  the  preceding  subdivision,  namely,  contracts 
under  seal  and  negotiable  instruments  payable  to  the 
agent  only. 


§§  U67-269.J    DUTIES  OF  THIRD  PERSON  TO  PRINCIPAL.       143 

See  Huntington  v.  Knox,  7  Cush.  (Mass.)  371,  Cases  on  Ag.  587; 
Ilarkness  v.  W.  U.  Tel.  Co.,  73  Iowa,  190,  5  Am.  St.  Rep.  672;  Mil- 
liken  v.  W.  U.  Tel.  Co.,  110  N.  Y.  403,  1  L.  R.  A.  281;  Powell  v. 
Wade,  109  Ala.  95,  19  So.  Rep.  500,  55  Am.  St.  Rep.  915,  and  note; 
Kingsley  v.  Siebrecht,  92  Me.  23,  42  Atl.  Rep.  249,  69  Am.  St.  Rep. 
486. 

If  the  agent  has  a  property  interest  in  the  contract 
equal  to  its  value,  or  if  the  contract  were  really  made 
with  the  agent  as  the  contracting  party,  to  the  exclusion 
of  the  principal,  as  where  the  third  person  with  knowl- 
edge of  the  principal  has  elected  to  deal  only  with  the 
agent,  these  cases  also  would  be  exceptions. 

§  2G8.  What  defences  open. — In  an  action  by  the 
principal,  the  other  party  may  make  any  defences  which 
he  may  have  against  the  principal,  and  also,  usually,  any 
defence,  such  as  payment  or  set-off,  which  he  may  have 
acquired  against  the  agent  before  the  discovery  of  the 
principal,  if  the  principal  was  not  disclosed  and  the 
agent  was  permitted  to  appear  as  the  ostensible  prin- 
cipal. 

See  Baxter  v.  Sherman,  73  Minn.  434,  76  N.  W.  Rep.  211,  72  Am. 
St.  Rep.  631;  Belfield  v.  National  Supply  Co.,  189  Pa.  189,  42  Atl. 
Rep.  131,  69  Am.  St.  Rep.  799;  Rosser  v.  Darden,  82  Ga.  219,  7  S.  E. 
Rep.  919,  14  Am.  St.  Rep.  152;  Montagu  v.  Forwood  [1893],  2  Q. 
B. 350. 

The  principal  must  also,  of  course,  be  affected  by  any 
defences  growing  out  of  the  fraud,  misrepresentation 
or  deceit  of  the  agent  in  securing  the  contract. 

See  Honaker  v.  Board  of  Education,  42  W.  Va.  170,  24  S.  E.  Rep. 
544,  57  Am.  St.  Rep.  847,  32  L.  R.  A.  413. 

>:  209.  Right  to  follow  and  recover  money  or  prop- 
erty.— Where  property  or  money  belonging  to  the 
principal  comes  into  the  hands  of  the  agent  for  some 
particular  purpose,  use  or  disposition,  such  property  or 
money  becomes  charged  with  a  trust  which  can  not  be 


144  DUTIES  OF  THIRD  PERSON  TO  PRINCIPAL.        [§  269. 

defeated  except  by  the  act  of  the  principal  or  the  greater 
equities  of  some  third  person.  Any  disposition  of  the 
property  or  money  contrary  to  the  purpose  for  which 
the  agent  received  it  is  unauthorized,  and  the  person 
who  received  it  must  restore  it  to  the  principal  unless 
he  can  establish  a  paramount  right.  Third  persons, 
therefore,  who  by  fraud,  collusion  or  sharp  practices 
obtain  such  property  or  money  may  be  compelled  to 
restore  it.  And  even  if  the  third  person  has  obtained 
it  in  good  faith,  he  must  still  return  it  unless  he  can 
show  that  he  is  a  bona  fide  holder  for  value  without 
notice  of  the  trust. 

In  the  case  of  ordinary  chattels  a  person,  however 
free  from  bad  faith  he  may  be  or  however  good  a  con- 
sideration he  may  give,  can  obtain  no  better  title  than 
his  grantor  had,  unless  the  true  owner  has  done  some- 
thing which  estops  him  from  asserting  his  title.  In  the 
case  of  negotiable  instruments  and  money,  which  is 
sometimes  said  to  have  no  "earmark"  by  which  it  may 
beMistinguished,  one  who  parts  with  value  in  good  faith 
may  be  protected. 

In  pursuing  his  property  or  money,  it  makes  no  dif- 
ference how  much  it  has  been  changed  in  form,  or 
through  how  many  hands  it  has  passed;  the  principal 
may  recover  it  if  he  can  identify  it,  and  if  it  has  not 
come  into  the  hands  of  a  bona  fide  holder  for  value. 

See  Farmers'  Bank  v.  King,  57  Penn.  202,  98  Am.  Dec.  215,  Cas. 
Ag.  590;  Baker  v.  N.  Y.  Bank,  100  N.  Y.  31,  53  Am.  Rep.  150,  ' 
Ag  596;  Roca  v.  Byrne,  145  N.  Y.  182,  39  N.  E.  Rep.  812,  45  Am.  St. 
Rep.  599;  Midland  National  Bank  v.  Brightwell,  148  Mo.  358,  49  S. 
W.  Rep.  994,  71  Am.  St.  Rep.  608;  First  Nat.  Bank  v.  Hummel,  14 
Colo.  259,  23  Pac.  Rep.  986,  8  L.  R.  A.  788;  Holly  v.  Domestic,  etc., 
Society,  34  C.  C.  A.  649,  92  Fed.  Rep.  745;  Gerard  v.  McCormick,  130 
N.  Y.  261,  29  N.  E.  Rep.  115,  14  L.  R.  A.  234;  Dorrah  v.  Hill,  73 
Miss.  787,' 19  So.  Rep.  961,  32  L.  R.  A.  631;  Stevenson  v.  Kyle,  42 
W.  Va.  229,  24  S.  E.  Rep.  888,  57  Am.  St.  Rep.  854;  Gilman  Oil  Co. 
V.  Norton,  89  Iowa  434,  56  N.  W.  Rep.  663,  48  Am.  St.  Rep.  400. 


§§  270-272.]    DUTIES  OF  THIRD  PERSON  TO  PRINCIPAL.       145 

§  270.  Right  to  rescind  dealings  where  agent 
secretly  in  employment  of  other  party. — As  has  been 
seen,  an  agent  cannot,  consistently  with  his  duty,  under- 
take to  represent  his  principal  where  he  is  at  the  same 
time  secretly  in  the  employment  of  the  other  party. 
Where,  therefore,  he  was  thus  at  the  same  time  secretly 
in  the  employment  of  the  other  party,  the  principal  is 
not  bound,  and  he  may,  if  he  so  elects,  rescind  dealings 
with  the  other  party  and  recover  from  him  what  he  has 
parted  with  to  him. 

As  has  been  seen  also,  it  is  not  necessary  for  the  prin- 
cipal in  such  a  case  to  show  that  he  has  been  injured 
or  that  the  agent  has  in  fact  betrayed  his  interests;  his 
right  to  repudiate  the  transaction  is  absolute,  provided 
he  acts  promptly  and  before  the  rights  of  innocent  third 
parties  have  intervened. 

See  New  York  Cent.  Ins.  Co.  v.  National  Ins.  Co.,  14  N.  Y.  85; 
United  States  Rolling  Stock  Co.  v.  Atlantic  R.  Co.,  34  Ohio  St.  450, 
32  Am.  Rep.  380. 

2.     In  Tort 

§  271.     Right  to  recover  damages  for  collusion. — 

The  principal  may  also  recover  damages  from  third  per- 
sons who  have  colluded  with  his  agent  to  defraud  him; 
and  he  may  recover  money  which  such  persons  have 
received  from  him  by  virtue  of  such  collusion,  or  may 
defeat  a  recovery  against  himself  by  showing  such  col- 
lusion. 

See  Boston  v.  Simmons,  150  Mass.  461,  Cas.  Ag.  598,  15  Am.  St. 
Rep.  230;  Mayor  of  Salford  v.  Lever  [1891],  1  Q.  B.  Div.  168,  Cas. 
Ag.  601;  City  of  Findlay  v.  Pertz,  13  C.  C.  A.  559,  66  Fed.  Rep.  427, 
29  L.  R.  A.  188;  Glaspie  v.  Keator,  5  C.  C.  A.  474,  56  Fed.  Rep.  203; 
Sbipway  v.  Broadwood  [1899],  1  Q.  B.  369. 

l'72.     Recovery  for  enticing  agent  away,  disa- 
bling him,  etc. — The  principal  may  also  maintain  ac- 

10 


146  DUTIES   OF  THIRD   PERSON   TO  PRINCIPAL.        [§  272. 

tions  of  tort  against  third  persons  who  maliciously  en- 
tice his  agent  to  break  his  contract  of  service,  or  who 
prevent  him  from  performing,  or  who  so  injure  him  as 
to  disable  him  from  performing. 

See  Haskins  v.  Royster,  70  N.  C.  601,  16  Am.  Rep.  780;  St.  Johns- 
bury  R.  R.  Co.  v.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639,  Cas.  Ag.  608; 
O'Neil  v.  Behanna,  182  Pa.  236,  37  Atl.  Rep.  843,  61  Am.  St.  Rep. 
702;  Doremus  v.  Hennessy,  176  111.  608,  52  N.  E.  Rep.  924,  68  Am. 
St.  Rep.  203. 


§273.] 


SPECIAL    CLASSES    OF    AGENTS. 


147 


CHAPTER  XVII. 


OP    SPECIAL    CLASSES    OF    AGENTS 


§  273.     In  general. 

1.     Of  Attorneys  at  Law. 

274.  Relation  of  attorney    to 
client. 

275.  How  appointed. 

276.  Duration  of  relation. 

277.  Implied  powers  of   attor- 

ney. 

278.  Attorney  bound  to  utmost 

loyalty  and  honor. 

279.  Dealings    between    attor- 

ney and  client. 

280.  Confidential     communica- 

tions privileged. 

281.  Liability    of    attorney    to 

client. 

282.  Liability    of   attorney    to 

third  persons. 

283.  Attorney's   right   to   com- 

pensation. 

Contingent     compen- 
sation. 

— How  reasonable  value 


284. 


shoVn. 

286.  Attorney   entitled    to    re- 

imbursement    and      in- 
demnity. 

287.  Attorney's  lien. 


§288. 
289. 
290. 
291. 
292. 
293. 
294. 

295. 
296. 
297, 
298. 
299. 
300. 
301- 
303. 

304. 


305 
306 
307 
308 
309 
310. 

311. 


2.     Of  Auctioneers. 
How  authorized. 
Terms  of  sale. 
Implied  powers. 
Duties  to  principal. 
Liability  to  third  persons. 
Compensation  and  lien. 
Liability  of  principal. 

3.  Of  Brokers. 
How  appointed. 
Implied  powers. 
Same  subject. 
Duties  to  principal. 
Acting  for  both  parties. 
Liability  to  third  persons. 

302.  Compensation. 

Compensation      for      both 

parties. 
Reimbursement,     i  n  d  e  ra- 

nity  and  lien. 

4.  Of  Factors. 

How  appointed. 

Implied   powers. 

Duties  to  principal. 

Same  subject. 

Duty  to  account. 

Compensation,    reimburse- 
ment, lien. 

Right  to  sue. 


§273.  Ingeneral. — Some  attention  has  already  been 
given  (§§  19-26)  to  certain  classes  of  professional  agents 
— i.  e.,  persons  whose  business  or  profession  it  is  to  act 
for  others  in  certain  capacities.  Some  further  attention 
to  these  special  classes  of  agents  seems  here  desirable. 
The  most  important  of  them,  as  already  observed,  are 


148  SPECIAL    CLASSES    OF    AGENTS.  [§§278-276. 

the  Attorney  at  Law,  the  Auctioneer,  the  Broker,  and 
the  Factor. 

1.     Of  Attorneys  At  Law. 

§  274.  Relation  of  attorney  to  client. — The  attor- 
ney at  law  is  an  officer  of  the  court  in  which  he  prac- 
tices, and  is  in  some  sense  an  officer  of  the  State.  But 
the  relation  of  the  attorney  to  his  client  is  a  relation  of 
agency,  and  is  in  general  governed  by  the  same  rules 
which  apply  to  other  agencies. 

§  275.  How  appointed. — No  formal  power  is  ordi- 
narily necessary,  but  the  attorney's  authority  may  be 
shown  as  in  other  cases.  When  a  duly  admitted  attor- 
ney appeal's  for  a  party  in  a  cause,  the  law  presumes 
that  his  appearance  was  authorized,  and  while  this  pre- 
sumption is  not  conclusive,  it  will  suffice  until  some 
showing  is  made  to  the  contrary,  and  then  the  attorney 
may  be  required  to  produce  his  authority. 

See  Reynolds  v.  Fleming,  30  Kan.  106,  46  Am.  Rep.  86,  Cas.  Ag. 
615. 

Proceedings  taken  in  reliance  upon  such  an  appear- 
ance are  also  presumed  to  be  valid,  and  only  to  be  im- 
peached upon  by  a  direct  proceeding.  If  the  principal 
is  injured  by  the  application  of  this  rule  to  proceedings 
really  unauthorized,  he  has  a  remedy  against  the  attor- 
ney. 

See  Corbitt  v.  Timmerman,  95  Mich.  581,  55  N.  W.  Rep.  437,  35 
Am.  St.  Rep.  586. 

§270.  Duration  of  relation. — The  employment  of 
an  attorney  to  conduct  a  cause  is  presumed  to  be  an 
entire  contract  on  his  part  for  the  whole  suit,  and  he 
can  not  lawfully  abandon  the  case  before  its  termina- 
tion without  just  cause  and  reasonable  notice.  But  on 
the  part  of  the  client,  the  engagement  is  deemed  to  be 


19  17C-277.]  SPECIAL    CLASSES    OF    AGENTS.  149 

at  will  merely,  and  be  may  discharge  the  attorney  at 
any  time  upon  paying  him  for  services  already  rendered. 

See  Tenney  v.  Berger,  93  N.  Y.  524,  45  Am.  Rep.  263;  Under- 
wood t.  Lewis  [1894],   2  Q.  B.  306. 

§  277.  Implied  powers  of  attorney. — An  attorney 
at  law  employed  to  conduct  a  case  has  implied  authority 
to  control  the  conduct  and  management  of  the  cause, 
and  to  do  all  things  which  are  necessary  or  incidental 
to  the  prosecution  or  defense  of  the  cause,  and  which 
affect  the  remedy  only  and  not  the  right  of  action.  His 
acts  and  stipulations,  therefore,  which  affect  the  prac- 
tice only  will  bind  his  client,  but  he  has  no  implied 
power  to  confess  judgment  or  compromise  or  release  his 
client's  cause  of  action,  release  liens,  levies,  or  securi- 
ties, grant  extensions  of  time,  or  waive  or  give  up  the 
substantial  rights  of  his  client.  He  may  receive  pay- 
ment of  the  claim,  either  before  or  after  judgment,  and 
may  take  the  necessary  steps  to  enforce  the  judgment; 
but  he  cannot  release  the  judgment  without  payment  in 
full,  or  assign  it,  or  receive  anything  but  money  in  pay- 
ment 

See  Moulton  v.  Bowker,  115  Mass.  36,  15  Am.  Rep.  72,  Cas.  Ag. 
619;  Kirk's  Appeal,  87  Penn.  243,  30  Am.  Rep.  357,  Cas.  Ag.  621; 
Nichells  v.  Nichells,  5  N.  Dak.  125,  64  N.  W.  Rep.  73,  57  Am.  St. 
Rep.  540,  33  L,  R.  A.  515;  Smith  v.  Jones,  47  Neb.  108,  66  N.  W. 
Rep.  19,  53  Am.  St.  Rep.  519;  Gardner  v.  Mobile  R.  Co.,  102  Ala. 
635,  15  So.  Rep.  271,  48  Am.  St.  Rep.  84;  Garrett  v.  Hanshue,  53 
Ohio  St.  482,  42  N.  E.  Rep.  256,  35  L.  R.  A.  321. 

As  in  the  case  of  other  agents,  his  powers  will  con- 
tinue after  a  discharge  unless  notice  of  that  fact  be 
given. 

See  Beliveau  v.  Amoskeag  Co.,  68  N.  H.  225,  40  Atl.  724,  U  L. 
R.  A.  167. 


150  SPECIAL    CLASSES    OF    AGENTS.  [§§  278-280. 

§  278.  Attorney  bound  to  utmost  loyalty  and 
honor.  —  The  attorney  is  bound  to  exercise  the  highest 
honor  and  integrity  towards  his  client,  not  to  take  his 
case  if  he  has  any  adverse  interest  which  will  prevent 
his  giving  his  individual  allegiance  to  his  client,  and  to 
maintain  at  all  times  the  utmost  loyalty  to  his  client's 
interests. 

See  Strong  v.  International  Building  Union,  183  111.  97,  55  N.  E. 
Rep.  675,  47  L.  R.  A.  792;  Darlington's  Estate  147  Pa.  624  23  Atl. 
Rep.  1046,  30  Am.  St.  Rep.  776. 

Like  other  agents  also  he  must  absolutely  refrain 
from  permitting  his  own  interests  to  conflict  with  those 
of  his  client.  He  may  not  buy  his  client's  property  at 
sales  in  litigation  in  which  he  is  concerned.  He  may  not 
profit  by  his  own  defaults  or  take  advantage  of  his  sit- 
uation to  make  gains  for  himself  at  his  client's  expense. 

See  Olson  v.  Lamb,  56  Neb.  104,  76  N.  W.  Rep.  433,  71  Am.  St.  Rep. 
670;  Eoff  v.  Irvine,  108  Mo.  378,  18  S.  W.  Rep.  907,  32  Am.  St.  Rep. 
609;  Baker  v.  Humphrey,  101  U.  S.  494;  Cunningham  v.  Jones, 
37  Kan.  477,  1  Am.  St.  Rep.  257;  Davis  v.  Kline,  96  Mo.  401,  9  S.  W. 
Rep.  724,  2  L.  R.  A.  78. 

§  279.  Dealings  between  attorney  and  client. — 
Dealings  between  attorney  and  client  must  be  charac- 
terized by  the  utmost  fairness  and  good  faith.  Some 
cases  hold  them  absolutely  voidable  at  the  option  of  the 
client,  but  the  true  rule  seems  to  be  that  while  they  will 
be  scrutinized  with  great  strictness,  they  will  be  upheld 
if  they  are  entirely  fair  and  voluntary,  but  of  this  the 
attorney  has  the  burden  of  proof. 

See  Elmore  v.  Johnson,  143  111.  513,  32  N.  E.  Rep.  413,  36  Am. 
St.  Rep.  401,  21  L.  R.  A.  366;  James  v.  Steere,  16  R.  I.  367,  16  Atl. 
Rep.  143,  2  L.  R.  A.  164;  Barron  v.  Willis  [1900],  2  Ch.  121;  Stout 
v.  Smith,  98  N.  Y.  25,  50  Am.  Rep.  632,  Cas.  Ag.  628. 

§  280.  Confidential  communications  privileged. — 
Confidential  communications  made  by  the  client  to  his 


§5  280-281.]  SPECIAL    CLASSES    OF   AGEXTS.  151 

attorney,  and  all  information  received  by  the  attorney 
from  the  client  or  from  his  papers,  and  of  a  confidential 
nature,  arc  "privileged,"  and  the  attorney  will  not  be 
permitted  i«»  disclose  them  without  the  consent  of  his 
client.  The  operation  of  the  privilege  is  perpetual 
survives  not  only  the  relation  of  attorney  and  client, 
but  the  lives  of  the  attorney  and  client  as  well.  It  van 
only  be  removed  when  it  becomes  necessary  for  the  at- 
torney's own  protection  against  his  client,  or  for  the 
furtherance  of  public  justice. 

See  Orman  v.  State,  22  Tex.  App.  604,  58  Am.  Rep.  662;  Mitchell 
v.  Bromberger,  2  Xev.  345,  90  Am.  Dec.  550;  Liggett  v.  Glenn,  2 
C.  C.  A.  286,  51  Fed.  Rep.  381;  Butler  v  Fayerweather,  33  C.  C.  A. 
625,  91  Fed.  Rep.  458;  O'Brien  v.  Spalding,  102  Ga.  490,  31  S.  E. 
Rep.   100,   66  Am.  St.  Rep.  202. 

The  privilege  is  the  privilege  of  the  client  and  not  of 
the  attorney;  and  it  may  be  waived  by  the  client. 

See  Michael  v.  Foil,  100  X.  Car.  178,  6  S.  E.  Rep.  264,  6  Am.  St. 
Rep.  577. 

It  exists  only  when  the  communication  can  fairly  be 
regarded  as  confidential,  and.  the  relation  of  attorney 
and  client  must  exist. 

See  Bruley  v.  Garvin,  105  Wis.  625,  81  X.  W.  Rep.  1038,  48  L. 
R.  A.  839.  Communications  to  a  law  student  are  not  privileged: 
Schubkagel  v.  Dierstein,  131  Pa.  46,  18  Atl.  Rep.  1059,  6  L.  R.  A.  481. 

Where  several  persons  employ  the  same  attorney  in 
the  same  matter  their  communications  are  privileged 
as  to  third  persons,  but  not  in  a  controversy  between 
themselves. 

See  Seip's  Estate,  163  Pa.  423,  30  Atl.  Rep.  226.  43  Am.  St.  Rep. 
803;  Haley  v.  Eureka  County  Bank,  21  Xev.  127,  26  Pac.  Rep.  64. 
12  L.  R.  A.  815. 

§281.     Liability  of  attorney  to  client. — Theattor- 
13     ney  impliedly  agrees  with  his  client  that  he  posses 


15.2  SPECIAL    CLASSES   OF   AGENTS.  [§§281-282. 

and  will  exercise  a  reasonable  degree  of  professional 
knowledge,  skill  and  diligence.  He  does  not  agree  that 
he  knows  all  the  law  and  will  make  no  mistakes,  but  he 
will  be  liable  if  he  is  ignorant  of  the  well  settled  rules 
of  law  or  practice,  from  which  his  client  sustains  injury. 

He  will  also  be  liable  to  his  client  for  losses  sustained 
bv  him,  caused  by  the  failure  of  the  attorney  to  exercise 
reasonable  care,  skill  and  diligence  in  collecting  claims, 
in  bringing  suit,  in  trying  the  cause,  in  examining  titles, 
in  preparing  contracts,  and  the  like. 

He  is  liable  for  the  neglects  and  defaults  of  his  part- 
ners and  clerks  in  the  same  manner  as  for  his  own.  It 
is  no  defence  to  him  that  he  was  acting  gratuitously. 

See  Lawall  v.  Groman,  180  Pa.  532,  37  Atl.  Rep.  98,  57  Am.  St. 
Rep.  662;  Citizens',  etc.,  Ass'n  v.  Friedley,  123  Ind.  143,  23  N.  E. 
Rep.  1075,  18  Am.  St.  Rep.  320,  7  L.  R.  A.  669;  Babbitt  v.  Bumpus, 
73  Mich.  331,  41  N.  W.  Rep.  417,  16  Am.  St.  Rep.  585;  Midgley  v. 
Midgley  [1893],  3  Ch.  282. 

§  282.  Liability  of  attorney  to  third  persons. — 
The  attorney  is  not  liable  to  third  persons  for  the  neg- 
lect of  duties  which  he  owes  to  his  client  only ;  but  he 
may  make  himself  liable  to  third  persons  where  he  con- 
tracts with  them  personally,  though  on  his  client's  be- 
half. 

See  Savings  Bank  v.  Ward,  100  U.  S.  195;  Houseman  v.  Girard 
Ass'n,  81  Pa.  256;  Buckley  v.  Gray,  110  Cal.  339,  42  Pac.  Rep.  900, 
52  Am.  St.  Rep.  88,  31  L.  R.  A.  862;  Atwell  v.  Jenkins,  163  Mass. 
362,  40  N.  E.  Rep.  178,  28  L.  R.  A.  694. 

He  will  not  ordinarily  be  liable  to  third  persons  who 
may  be  injured  by  malicious  or  wrongful  actions  insti- 
tuted by  his  client  in  which  he  was  attorney,  but  he  will 
be  liable  if  he  shares  and  aids  his  client's  malice,  or  if  he 
acts  from  malice  of  his  own.  He  will  also  be  liable  with 
his  clienl  where  he  directs  the  service  of  void  or  illegal 
process. 


§§282-285.]  SPECIAL    CLASSES   OF   AGENTS.  153 

See  Peck  v.  Chouteau,  91  Mo.  140,  60  Am.  Rep.  236;    Cook  v.  Hop- 
per, 23  Mich.  511. 

§283.    Attorney's  right  to  compensation.— Unless 
he  has  undertaken  to  serve  gratuitously,  the  attorney 

is  cut ii  led  to  compensation  for  his  lawful  services.  The 
amount  to  be  paid  may  be  fixed  by  the  contract  of  the 
parties  or  be  left  to  be  determined  according  to  the 
reasonable  value  of  the  service  rendered. 

See  Davis  v.  Webber,  66  Ark.  190,  49  S.  W.  Rep.  822,  45  L.  R.  A. 
196;  Russell  v.  Young,  36  C.  C.  A.  71,  94  Fed.  Rep.  45;  Bartlett  v. 
Savings  Bank,  79  Cal.  218,  21  Pac.  Rep.  743,  12  Am.  St.  Rep.  139; 
Bowman  v.  Phillips,  41  Kan.  364,  21  Pac.  Rep.  230,  13  Am.  St.  Rep. 
292,  3  L.  R.  A.  631. 

§  284.    Contingent  compensation. — A  contract 

for  compensation  contingent  upon  success  is  valid,  and, 
in  most  States,  it  is  no  less  valid  because  the  attorney 
is  to  receive  as  his  compensation  a  portion  of  the  money 
or  thins:  recovered. 


it> 


See  Stanton  v.  Embrey,  93  U.  S.  548,  Cas.  Ag.   631;    Duke  T. 
Harper.  66  Mo.  51,  27  Am.  Rep.  314. 

§  285     How  reasonable  value  shown. — When 

no  amount  has  been  agreed  upon,  the  attorney  is  enti- 
tled to  recover  the  reasonable  value  of  his  services,  and 
for  the  purpose  of  proving  this  he  may  call  other  law- 
yers as  witnesses  to  give  their  opinion.  In  such  cases 
the  nature  and  difficulty  of  the  matter,  the  amount  in- 
volved and  the  character  and  standing  of  the  attorney 
may  be  considered  in  determining  the  value. 

See  Stanton  v.  Embrey,  93  U.  S.  548,  Cas.  Ag.  631;  Eggleston  v. 
Boardman,  37  Mich.  14;  Louisville,  etc.,  R.  Co.  v.  Wallace,  136  111. 
87,  26  N.  E.  Rep.  493,  11  L.  R.  A.  787;  Selover  v.  Bryan; 
434,  56  N.  W.  Rep.  58,  40  Am.  St.  Rep.  349.  21  L.  R.  A.  418;  Wi  . 
v.  Kohn,  7  C.  C.  A.  314.  58  Fed.  Rep.  462;  Davis  v.  WTebber,  66  Ark. 
190,  49  S.  W.  Rep.  822,  45  L.  R.  A.  196. 


154  SPECIAL    CLASSES   OF   AGENTS  [§§  286-288. 

§  280.  Attorney  entitled  to  reimbursement  and 
indemnity. — The  attorney  is  also  entitled  to  reimburse- 
ment for  his  necessary  and  legitimate  expenses  and  to 
indemnity  for  liability  properly  incurred  in  his  client's 
behalf. 

See  Clark  v.  Randall,  9  Wis.  135,  76  Am.  Dec.  252. 

§  287.  Attorney's  lien. — For  the  purpose  of  secur- 
ing the  payment  of  his  costs  and  charges,  the  attorney  is 
entitled  to  a  lien.    This  lien  is  of  two  kinds: 

1.  A  general  or  retaining  lien  which  entitles  him  to 
retain  his  client's  papers,  property  or  money  in  his 
hands  until  his  claim  is  paid;  and 

2.  A  special  or  charging  lien,  which  exists  in  most 
States  and  which  attaches  to  the  judgment,  money  or 
property  recovered  by  the  services  of  the  attorney,  and 
secures  the  payment  of  his  costs  and  charges  in  that 
particular  suit. 

In  many  States  the  attorney's  lien  is  regulated  by 
statute. 

See  Goodrich  v.  McDonald,  112  N.  Y.  157,  Cas.  Ag.  633;  In  re  Wil- 
son, 12  Fed.  Rep.  235,  Cas.  Ag.  638;  Weeks  v.  Judges,  73  Mich.  256, 
Cas.  Ag.  648;  .Hanna  v.  Island  Coal  Co.,  5  Ind.  App.  163,  31  N.  E. 
Rep.  846,  51  Am.  St.  Rep.  246,  and  note;  Manning  v.  Leighton,  65 
Vt.  84,  26  Atl.  Rep.  258,  24  L.  R.  A.  684;  Randall  v.  Van  Wagenen, 
115  N.  Y.  527,  22  N.  E.  Rep.  361,  12  Am.  St.  Rep.  828. 

2.     Of  Auctioneers. 

§  288.  How  authorized.  — The  auctioneer  does  not 
require  to  be  authorized  in  any  particular  manner, 
though  the  authority  must  contemplate  a  sale  by  auc- 
tion, for  general  authority  to  sell  property  does  not  jus- 
tify a  sale  by  auction. 

See  Towle  v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195,  Cas.  Ag.  358. 

Parol  authority  is  usually  sufficient,  even  to  sell  land. 
See  Doty  v.  Wilder,  15  111.  407,  60  Am.  Dec.  756. 


§§  289-291.]  SPECIAL    CLASSES    OF    AGENTS.  155 

§281).    Terms  of  Bale.— The  owner  of  the  property 

to  be  sold  has  tin'  righl  to  fix  the  terms  and  conditions 
of  the  sale,  and  where  they  are  made  known  at  the  sale, 
a  purchaser  can  not  acquire  a  good  title  in  violation  of 
t  hem.  But  secret  limitations  would  not  affect  the  rights 
of  a  purchaser  who  lias  relied  in  good  faith  upon  the 
usual  powers  exercised  by  such  agents. 

See  Farr  v.  John,  23  Iowa,  286,  92  Am.  Dec.  426;  Bush  v.  Cole, 
28  N.  Y.  261.  84  Am.  Dec.  343,  Cas.  Ag.  650. 

§  290.  Implied  powers. — The  auctioneer  has  implied 
authority  to  accept  the  bid,  and  to  receive  the  price, 
though  he  can  not  sell  for  anything  except  money  or 
receive  anything  but  money  in  payment  of  the  price.  He 
may  sue  in  his  own  name  to  recover  the  price  of  personal 
property  sold  by  him.  He  has  no  implied  power  to  dele- 
gate his  authority,  or  to  sell  on  credit,  or  to  rescind  the 
sale,  or  to  sell  at  private  sale,  or  to  warrant  the  quality 
of  goods  sold  unless  that  is  usual.  Like  other  agents,  he 
is  disqualified  to  sell  to  himself. 

See  Thompson  v.  Kelly,  101  Mass.  291,  3  Am.  Rep.  353,  Cas.  Ag. 
653;  Boinest  v.  Leignez,  2  Rich.  (S.  C.)  L.  464,  Cas.  Ag.  655; 
Blood  v.  French,  9  Gray  (Mass.),  197;  Dodd  v.  Farlow,  11  Allen, 
426,  87  Am.  Dec.  726. 

§  201.  Duties  to  principal.  —  The  auctioneer  is 
bound  to  his  principal  for  the  exercise  of  good  faith  and 
for  reasonable  skill  and  diligence. 

See  Hicks  v.  Minturn,  19  Wend.   (N.  Y.)   550. 

He  must  obey  instructions,  take  reasonable  care  of 
the  goods,  and  account  to  the  principal  for  their  pro- 
ceeds. 

See  Steele  v.  Ellmaker,  11  Serg.  &  R.  (Pa.)  86;  Montgomery  v. 
Pacific  Coast  Land  Bureau,  94  Cal.  284.  29  Pac.  Rep.  640.  28  Am. 
St.  Rep.  122. 


156  SPECIAL    CLASSES   OF   AGENTS.  [§§292-293. 

§  292.  Liability  to  third  persons. — The  auctioneer 
who  discloses  his  principal  and  sells  as  agent  only,  and 
within  the  limits  of  his  authority,  incurs  no  liability  to 
third  persons  on  the  contract  of  sale,  but  if  he  conceals 
his  principal,  he  is  personally  liable  upon  the  contract. 

See  Bush  v.  Cole,  28  N.  Y.  261,  84  Am.  Dec.  343,  Cas.  Ag.  650; 
Seemuller  v.  Fuchs,  64  Md.  217,  54  Am.  Rep.  766. 

He  is  also  liable  to  third  persons  for  injuries  which 
they  may  sustain  by  reason  of  his  acting  without  au- 
thority. 

See  Dent  v.  McGrath,  3  Bush  (Ky.)  174;  Harris  v.  Nickerson,  L. 
R.  8  Q.  B.  286,  Cas.  Ag.  659. 

It  has  been  held  that  an  auctioneer  who  receives  and 
sells  the  goods  of  a  stranger  is  liable,  even  though  he 
acted  in  good  faith  supposing  them  to  be  the  goods  of 
the  person  from  whom  he  received  them ;  but  other  cases 
hold  that  he  is  not  so  liable  where  he  has  paid  over  the 
money  to  the  person  from  wiiom  he  received  the  goods 
before  he  had  notice  of  the  fact  that  such  person  was  not 
the  owner.  The  weight  of  authority  seems  to  be  that 
he  is  liable  in  these  cases  also. 

See  Farebrother  v.  Ansley,  1  Camp.  343;  Higgins  v.  Lodge,  68 
Md.  229,  6  Am.  St.  Rep.  437,  Cas.  Ag.  656;  Frizzell  t.  Rundle,  88 
Tenn.  396,  17  Am.  St.  Rep.  908;  Robinson  v.  Bird,  158  Mass'  357,  35 
Am.  St.  Rep.  495;  Kearney  v.  Glutton,  101  Mich.  106,  59  N.  W.  Rep. 
419,  45  Am.  St.  Rep.  394;  Consolidated  Co.  v.  Curtis  [1892],  1  Q.  B. 
495;  Milliken  v.  Hathaway,  148  Mass.  69,  19  N.  E.  Rep.  16,  1  L.  R. 
A.  510.  A  fortiori  will  be  liable  if  he  had  notice  of  the  third  person's 
rights:  Morrow  Shoe  Mfg.  Co.  v.  New  England  Shoe  Co.,  6  C.  C.  A. 
508,  57  Fed.  Rep.  685,  24  L.  R.  A.  417. 

§293.  Compensation  and  lien. — The  auctioneer  is 
entitled  to  compensation  for  his  services,  and  to  reim- 
bursement for  his  necessary  expenditures  and  liabilities. 
He  has  a  special  property  hi  the  goods  delivered  to  him 


§§293-295.]  SPECIAL    CLASSES   OF   AGENTS.  157 

for  sale,  and  a  lien  upon  the  goods  and  their  proceeds 
for  his  commissions  and  charges. 

See  Webb  v.  Smith,  30  Ch.  Div.  192,  Cas.  Ag.  CC1. 

§  294.  Liability  of  principal  for  acts  of  auctioneer. 
— The  principal  is  bound,  as  in  any  other  case  of 
agency,  by  the  contracts  made  by  the  auctioneer  with- 
in the  scope  of  the  authority.  And  to  the  same  extent 
as  in  other  cases,  also,  he  is  affected  by  the  represen- 
tations which  the  auctioneer  makes  in  order  to  effect  a 
sale. 

See  Cockcroft  v.  Muller,  71  N.  Y.  3G7;  Roberts  v.  French,  153 
Mass.  60,  26  N.  E.  Rep.  416,  25  Am.  St.  Rep.  611,  10  L.  R.  A.  656. 

3.     Of  Brokers. 

§  295.  How  appointed. — Brokers,  as  has  been  seen, 
are  of  many  kinds,  according-  to  the  special  branch  of 
trade  which  they  pursue,  but  their  rights  and  powers 
are  substantially  the  same.  They  are  appointed  like 
other  agents,  and  their  powers  are  terminated  as  in 
other  eases.  Their  powers  and  duties  are  much  con- 
trolled by  usage,  with  which  it  is  not  only  their  right 
hut  their  duty  to  comply  unless  otherwise  directed. 
Usage,  however,  will  not  justify  a  departure  from  pos- 
itive instructions,  or  the  disregard  of  an  express  con- 
tract. 

See  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  Rep.  950,  37  L.  ed. 
819;  Skiff  v.  Stoddard,  63  Conn.  198,  26  Atl.  Rep.  874,  21  L.  R.  A. 
102;  Fairly  v.  Wappoo  Mills,  44  S.  Car.  227,  22  S.  E.  Rep.  10S.  29 
L.  R.  A.  215;  De  Cordova  v.  Barnum,  130  N.  Y.  615,  29  N.  E.  Rep. 
1099,  27  Am.  St.  Rep.  538. 

The  broker  is  usually  a  special  agent  who  can  bind 
his  principal  only  while  acting  in  pursuance  of  the  limi- 
tations put  upon  his  authority. 

See  Clark  v.  Cumming,  77  Ga.  64,  4  Am.  St.  Rep.  72.  Cas.  Ag.  6GH. 


158  SPECIAL    CLASSES   OF   AGENTS.  [§§  296  298. 

§  29G.  Implied  powers. — The  broker  lias  no  implied 
authority  to  delegate  his  powers,  except  under  the  same 
circumstances  which  justify  it  in  the  case  of  other 
agents.  His  acts  usually  should  be  done  in  the  name 
of  his  principal  only. 

See  Delafield  v.  Smith,  101  Wis.  664,  78  N.  W.  Rep.  170,  70  Am. 
St.  Rep.  938;  Haas  v.  Ruston,  14  Ind.  App.  8,  42  N.  E.  Rep.  298,  56 
Am.  St.  Rep.  288. 

Where  he  has  not  been  limited  as  to  the  price  at 
which  he  shall  buy  or  sell,  he  has  implied  power  to  fix 
the  price,  if  he  acts  in  good  faith  and  confines  him- 
self to  the  usual  price,  or  to  a  fair  and  reasonable  one 
where  there  is  no  usage. 

See  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45; 
Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682. 

§  297.  Same  subject. — He  has  no  general  power  to 
sell  with  a  warranty  of  quality,  but  may  give  one  where 
it  is  usually  given  with  such  goods  at  that  time  and 
place.  If  not  restricted,  he  may  sell  upon  a  reasonable 
credit.  When  not  entrusted  with  the  possession  of  the 
goods  he  sells,  he  has  no  implied  authority  to  receive 
payment.  Having  once  made  a  valid  contract  he  has 
no  implied  authority  to  rescind  it. 

See  Hitchcock  v.  Griffin  &  Skelley  Co.,  99  Mich.  447,  58  N.  W.  Rep. 
373,  41  Am.  St.  Rep.  624;  Andrews  v.  Kneeland,  6  Cow.  (N.  Y.)  354; 
Dodd  v.  Farlow,  11  Allen  (Mass.)  426,  87  Am.  Dec.  726;  Adams  v. 
Fraser,  27  C.  C.  A.  82  Fed.  Rep.  211;    Saladin  v.  Mitchell,  45  111.  79. 

§298.  Duties  to  principal. — The  broker  must  obey 
the  principal's  instructions,  and  will  be  liable  for  a  loss 
caused  by  his  disobedience.  He  owes  to  his  principal 
the  possession  and  exercise  of  a  reasonable  degree  of 
care,  skill  and  diligence.  He  must  be  faithful  to  the 
interests  of  his  principal,  and  must  not  allow  his  own 
interests  or  those  of  any  other  employer  to  conflict  with 
those  of  his  principal. 


.- 


§§298-300.]  SPECIAL    CLASSES   OF   AGENTS.  159 

See  Galigher  v.  Jones,  129  U.  S.  193,  9  Sup.  Ct.  Rep.  333.  32  L.  ed. 
658;  Taussig  v.  Hart,  58  N.  Y.  425;  Baker  v.  Drake,  53  N.  Y.  211, 
13  Am.  Rep.  507,  66  N.  Y.  518,  23  Am.  Rep.  80;  Myles  v.  Myles,  6 
Bush  (Ky.)  237;  Farnsworth  v.  Hemmer,  1  Allen  (Mass.)  494,  79 
Am.  Dec.  756;  Levy  v.  Spencer,  18  Colo.  532,  33  Pac.  Rep.  415,  36 
Am.  St.  Rep.  303. 

§299.  Acting  for  both  parties. — He  will  not  be 
allowed  to  represent  both  parties  to  the  transaction, 
without  the  full  and  intelligent  consent  of  both,  except 
in  those  eases  in  which  he  acts  as  mere  middle-man, 
bringing-  the  parties  together  and  then  leaving  them  to 
contract  for  themselves. 

See  Rice  v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459,  Cas.  Ag.  12; 
Bell  v.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep.  528,  Cas.  Ag.  538; 
Vinton  v.  Baldwin,  88  Ind.  104,  45  Am.  Rep.  447,  Cas.  Ag.  664. 

Contracts  made  while  the  broker  is  secretly  in  the 
employment  of  the  otber  party  are  avoidable  as  in  other 
similar  cases. 

See  Ferguson  v.  Gooch,  94  Va.  1,  26  S.  E.  Rep.  397,  40  L.  R.  A. 
234;    Cannell  v.  Smith,  142  Pa.  St.  25,  21  Atl.  Rep.  793,  12  L.  R.  A 
395. 

§300.  Liability  to  third  persons.  —  The  broker 
will  not  be  personally  liable  upon  the  contracts  which 
he  makes  where  he  discloses  the  name  of  his  principal 
and  contracts  in  his  name  and  within  the  limits  of  his 
authority;  though  he  may  make  himself  personally  lia- 
ble by  exceeding  his  authority,  concealing  his  principal, 
or  contracting  on  his  own  responsibility. 

See  Simmons  v.  More,  100  N.  Y.  140,  Cas.  Ag.  505. 

He  will,  however,  be  liable,  it  seems,  where  he  sells 
the  property,  such  as  stocks,  of  a  third  person,  even 
though  he  acted  in  good  faith  supposing  that  the  per- 
son from  whom  he  received  the  stock  for  sale  was  tic 
true  owner  and  although  he  has  paid  over  the  proceed ; 
to  such  person. 


ICO  SPECIAL    CLASSES   OF   AGENTS.  [§§300-302. 

See  Swim  v.  Wilson,  90  Cal.  126,  27  Pac.  Rep.  33,  25  Am.  St.  Rep. 
13  0,  13  L.  R.  A.  605,  and  cases  cited  ante  §292;  Roach,  v.  Turk,  9 
Heisk.  (Tenn.)  708,  24  Am.  Rep.  360;  Compare  Leake  v.  "Watson. 
58  Conn.  332,  20  Atl.  Rep.  343,  18  Am.  St.  Rep.  270. 

§  301.  Compensation. — The  broker  is  entitled  to  his 
compensation  when  he  has  completed  his  undertaking. 
If  employed  to  find  a  purchaser,  he  is  entitled  to  his  com- 
pensation when  he  has  found  a  person  ready,  willing 
and  able  to  buy  on  the  terms  proposed,  or,  if  no  terms 
are  fixed,  to  whom  the  principal  sells.  He  is  not  to  be 
deprived  of  his  compensation  because  the  principal  sub- 
sequently changes  his  mind  or  his  terms,  or  because  the 
principal's  title  fails,  or  because,  he  can  not  make  a  sat- 
isfactory conveyance.  It  is  not  necessary  in  these 
cases  that  the  broker  shall  have  actually  completed  a 
binding  contract.  It  is  enough  if  he  is  the  procuring 
cause  of  the  sale,  though  the  transaction  is  concluded 
by  the  principal. 

Sea  Vinton  v.  Baldwin,  88  Ind.  104,  45  Am.  Rep.  447,  Cas.  Ag.  664; 
Plant  v.  Thompson,  42  Kan.  664,  16  Am.  St.  Rep.  512,  Cas.  Ag.  666; 
Sibbald  v.  Bethlehem  Iron  Co.,  83  N.  Y.  378,  38  Am.  Rep.  411,  Cas. 
Ag.  301;  Brackenridge  v.  Claridge,  91  Tex.  527,  44  S.  W.  Rep.  819, 
43  L.  R.  A.  593;  Gilder  v.  Davis,  137  N.  Y.  504,  33  N.  E.  Rep.  599, 
20  L.  R.  A.   398. 

§  302.     Unless  there  is  an  express  agreement  to 

the  contrary,  the  principal  may  revoke  the  broker's  au- 
thority at  any  time  before  the  purchaser  has  been 
found,  and  in  such  a  case  the  broker  will  not  be  entitled 
to  any  compensation  for  what  he  has  done  in  endeavor- 
ing to  find  a  purchaser.  Where,  however,  the  broker 
substantially  performed,  the  principal  will  not  be 
permitted  to  revoke  the  authority  and  complete  the  sale 
himself  for  the  very  purpose  of  avoiding  the  payment 
of  the  commission. 

See  Cadigan  v.  Crabtree,  179  Mass.  474,  61  N.  E.  Rep.  37,  551*. 
R.  A.  77;    Sibbald  v.  Bethlehem  Iron  Co.,  svpra. 


§§  302-304.]  SPECIAL    CLASSES   OF   AGENTS.  1G1 

Where  two  or  more  brokers  arc  employed,  he  only  is 
entitled  to  tin*  commission  whose  services  were  the  ef- 
ficient cause  of  the  sale,  even  though  the  others  have 
also  contributed  in  producing  the  result. 

See  Whitcomb  v.  Bacon,  170  Mass.  479,  49  N.  E.  Rep.  742,  64  Am. 
St.  Rep.  317. 

§  303.  Compensation  from  both  parties. — lie  can 
not  have  compensation  from  both  parties  except  when 
he  acts  as  agent  of  both  with  their  full  knowledge  and 
consent. 

Where,  however,  the  broker  was  acting  as  a  mere 
"middle-man,"  bringing  the  parties  together  only  and 
then  leaving  them  to  make  their  own  bargains,  —  the 
broker  standing  entirely  indifferent  between  them,  — 
the  rule  forbidding  double  compensation  does  not  ap- 
ply. In  such  a  case  it  is  held  that  the  broker  may 
have  compensation  from  each  principal  although  each 
may  have  been  ignorant  of  the  broker's  relations  to  the 
other. 

See  Rice  v.  "Wood;  Bell  v.  McConnell,  supra;  McDonald  v.  Maltz, 
94  Mich.  172,  53  N.  W.  Rep.  1058,  34  Am.  St  Rep.  331;  Montross 
v.  Eddy,  94  Mich.  100,  53  N.  W.  Rep.  916,  34  Am.  St.  Rep.  323;  Rice 
v.  Davis,  136  Pa.  St.  439,  20  Atl.  Rep.  513,  20  Am.  St.  Rep.  931. 

§  304.  Reimbursement,  indemnity  and  lien.  — He  is 
entitled  to  reimbursement  and  indemnity  like  other 
agents  for  losses  and  liabilities  properly  incurred  and 
advances  made  on  his  principal's  account;  but  no!  where 
the  loss  was  caused  by  his  own  default  or  the  advances 
were  made  to  further  a  transaction  known  to  be  un- 
lawful. 

See  Perin  v.  Parker,  126  111.  201,  18  N.  E.  Rep.  747.  9  Am.  St. 
Rep.  571,  2  L.  R.  A.  336;  Ellis  v.  Pond  Syndicate  [1898],  1  Q.  B. 
426;  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  Rep.  49,  15  Am.  St. 
Rep.  159;  Gillett  v.  Whiting,  141  N.  Y.  71,  35  N.  E.  Rep.  939,  38  Am. 
St.  Rep.  762. 
13 


162  SPECIAL    CLASSES    OF   AGENTS.  [§§304-307. 

The  broker  is  ordinarily  not  in  possession  of  the 
goods  he  sells,  and  therefore  generally  he  has  no  right 
of  lien.  Since  it  is  his  duty  to  contract  in  the  name 
of  his  principal,  he  has  usually  no  right  to  sue  in  his 
own  name  upon  the  contracts  which  he  makes. 

See  Fairlie  v.  Fenton,  L.  R.  5  Exch.  169,  Cas.  Ag.  669. 

4.     Of  Factors. 

§  305.  How  appointed. — The  authority  of  the  factor 
may  be  created  and  terminated  like  that  of  other  agents. 

§306.  Implied  powers. — He  may  sell  the  goods  in 
his  own  name,  may  grant  a  reasonable  credit,  and  may 
give  a  warranty  where  that  is  usual.  He  has  no  implied 
power  to  pledge  or  transfer  the  goods  for  his  own  debt, 
though  by  statutes  called  Factors'  Acts  now  found  in 
many  States  innocent  pledges  are  protected.  He  has 
no  implied  power  to  exchange  the  goods,  to  delegate 
his  authority,  to  compromise  the  claim  for  the  pur- 
chase price,  to  rescind  the  sale,  to  extend  the  time  of 
payment,  to  make  negotiable  paper,  or  to  receive  any- 
thing but  money  in  payment  for  the  goods. 

See  Pinkham  v.  Crocker,  77  Me.  563,  Cas.  Ag.  676;  Warner  v. 
Martin,  11  How.  (U.  S.)  209,  Cas.  Ag.  678;  Insurance  Co.  v.  Kiger, 
103  U.  S.  352,  Cas.  Ag.  686;  Commercial  Bank  v.  Hurt,  99  Ala.  130, 
12  So.  Rep.  568,  19  L.  R.  A.  701,  42  Am.  St.  Rep.  38;  Romeo  v. 
Martucci,  72  Conn.  504,  45  Atl.  Rep.  1,  99,  47  L.  R.  A.  601;  First 
National  Bank  v.  Schween,  127  111.  573,  20  N.  E.  Rep.  681,  11  Am.  St. 
Rep.  174;  Argersinger  v.  Macnaughten,  114  N.  Y.  535,  21  N.  E.  Rep. 
1022,  11  Am.  St.  Rep.  687;  Peek  v.  Heim,  127  Pa.  St.  500,  17  Atl. 
Rep.  984,  14  Am.  St.  Rep.  865;  Barnes  Safe  Co.  v.  Bloch  Bros.  Co., 
38  W.  Va.  158,  18  S.  E.  Rep.  482,  22  L.  R.  A.  850,  45  Am.  St.  Rep.  846. 

§  307.  Duties  to  principal. — He  must  act  in  good 
faith,  be  loyal  to  his  trust  and  exercise  reasonable  skill 
and  diligence. 

See  Phillips  v.  Moir,  69  111.  155,  Cas.  Ag.  671;  Conway  v.  Lewis, 
120  Pa.  St.  215,  13  Atl.  Rep.  826,  6  Am.  St.  Rep.  700;    Usborne  v. 


§§307-309.1  SPEC I.\ I,    CLASSES    OF    AGENT! 

Stephenson,   36  Oreg.  328,   48   L.   R.  A.   432;     Sims  v.   Miller,  3. 
Car.  402,  16  S.  E.  Rep.  155,  34  Am.  St.  Rep.  762;    Charlotte  Oil  Co. 
v.  Hartog,  29  C.  C.  A.  56,  85  Fed.  Rep.  150. 

§308.  Same  subject. — He  must  obey  instructions 
as  to  the  time  and  terms  of  sale,  and  will  be  Liable  Cor 
losses  caused  by  his  disobedience;  except  thai  where  lie 
lias  made  advances  on  the  goods  t<>  his  principal,  he  may 
sell  contrary  to  orders,  for  his  own  reimbursement,  if 
the  principal  has  neglected  to  reimburse  him  within  a 
reasonable  time  after  demand;  and  he  is  not  obliged  to 
sell  at  a  price  fixed  by  the  principal  when  he  would 
thereby  imperil  his  security. 

See  Talcott  v.  Chew,  27  Fed.  Rep.  273,  Cas.  Ag.  689;    Lehman  v. 
Pritchett,  84  Ala.  512,  Cas.  Ag.  693;    Hatcher  v.  Comer,  73  Ga.  418, 
Cas.  Ag.  698;    Davis  v.  Kobe,  36  Minn.  214,  1  Am.  St.  Rep.  663,  Cas 
Ag.  700;    Dolan  v.  Thompson,  126  Mass.  183,  Cas.  Ag.  684;    Comer  v 
Way,  107  Ala.  300,  19  So.  Rep.  966,  54  Am.  St.  Rep.   93. 

§  309.     Duty  to  account.— It  is  the  duty  of  the  fae 
tor  to  account  to  his  principal  for  all  goods,  proper  t; 
and  moneys  of  the  principal,  which  come  into  his  hands 
as  factor,  after  deducting  his  own  proper  advances  and 
commissions. 

See  Cooley  v.  Betts,  24  Wend.  203,  Cas.  Ag.  702. 

The  principal  may  follow  and  recover  his  propeity 
or  its  proceeds  so  long  as  it  can  be  identified  and  urtiil 
it  comes  into  the  hands  of  a  bona  fide  holder  for  value. 

See  ante  §  269;  Drovers'  Nat.  Bank  v.  Roller,  85  Md.  495,  37  Atl. 
Rep.  30,  36  L.  R.  A.  767;  Ferchen  v.  Arndt,  26  Ore.  121,  37  Pac.  Rep. 
161,  29  L.  R.  A.  664. 

Where  the  factor  sells  upon  a  del  credere  commis- 
sion he  guarantees  the  payment  of  the  price. 

See  Lewis  v.  Brehme,  33  Md.  412,  3  Am.  Rep.  190.  Cas.  Ag.  706; 
Balderston  v.  National  Rubber  Co.,  18  R.  I.  33S,  27  Atl.  Rep.  507, 
49  Am.  St.  Rep.  772. 


164  SPECIAL    CLASSES    OF   AGENTS.  [§§  310-311. 

§  310.  Compensation,  reimbursement,  lien. — The 
factor  is  entitled  to  compensation,  reimbursement  and 
indemnity,  like  other  agents.  He  has  also  a  lien  upon 
all  the  goods  in  his  possession,  and  upon  the  price  of 
those  sold  and  on  securities  taken  for  goods  sold  to  se- 
cure the  payment  of  the  general  balance  of  the  account 
between  himself  and  his  principal,  and  he  may  sell  the 
goods  to  satisfy  his  claim. 

See  McGraft  y.  Rugee,  60  Wis.  406,  50  Am.  Rep.  378,  Cas.  Ag.  717; 
Comer  y.  Way,  107  Ala.  300,  19  So.  Rep.  966,  54  Am.  St.  Rep.  93; 
Warren  v.  First  Nat.  Bank,  149  111.  9,  38  N.  E.  Rep.  122,  25  L.  R.  A. 
746. 

Whether  the  factor  must  enforce  his  lien  before  call- 
ing for  reimbursement  is  in  dispute. 

See  Balderston  y.  Nat.  Rubber  Co.,  18  R.  I.  338,  27  Atl.  Rep.  507, 
49  Am.  St.  Rep.  772. 

§  311.  Right  to  sue. — He  may  sue  in  his  own  name 
for  the  price  of  goods  sold  by  him,  and  he  has  such  a  spe- 
cial property  in  the  goods  that  he  may  maintain  actions 
of  trespass,  replevin  and  trover  in  respect  of  them. 

See  Ilsley  v.  Merriam,  7  Cush.  (Mass.)  242,  54  Am.  Dec.  721; 
Fitzhugh  v.  Wiman,  9  N.  Y.  559. 


INDEX. 


[References  are  to  sections.] 
ABANDONMENT— 

when   agent   may   abandon   agency 122 

compensation   in   case   of,    see  "Compensation" 
ACCOUNT— 

duty  of  agent  to 185  et  seq. 

see  also  "Attorney  at  Law,"  "Auctioneer,"  "Broker,"  "Factor." 
ACTION— 

in  what  form  of,  agent  liable  to  principal 174 

in  what  form  of,  agent  liable  to  third  persons  usually 196 

no  right  of,  against  third  persons 261 

when   agent    may   sue   third   person 2G2,  263 

what   actions  maintainable    265 

auctioneer  may  sue  290 

factor  may  sue   311 

ADMISSIONS— 

of  agent  will  not  establish  agency 70 

bind   principal,   when 244 

ADVERSE   INTEREST— 

agent  may  not  assume 51 

AGENCY— 

defined    1 

a  contractual  relation   2 

exists  usually  by  assent  of  principal   3 

may   be   created  by  law 4 

differs  from — 

trust     9 

sale    10 

lease     H 

contract  of   12 

classification  of 13t  24 

actual   or  ostensible    13 

universal,  general  and  special 14 

how   proved    18 

professional    and    non-professicnal    12,  24 

distinction    between   classes    of 24,  27 

may  be  created  for  any  lawful  purpose 27 

exceptions    29,  34 

165 


166  INDEX. 

[References  are  to  sections.] 
AGENCY— Continued. 

what   contracts   for,   void 34,  35 

how  to  determine  nature  of 73 

why    created    HI 

enforcement  of  contract  of 119 

at   will    120 

how  terminated,  see  "Termination  of  Agency" 
AGENT— 

duties  and  liabilities  of,  see  "Duties  and  Liabilities.' 

how   authority   of,    exists    2,   3 

compared   with   servant    5,   8 

compared  with  independent  contractor   8 

the  contract  appointing  12 

classes   of    13,   24 

distinction  between  classes  of .24,  27 

validity  as  between  principal  and  34 

who  may  be   43,  51 

may  not  assume  adverse  interest 51 

may  represent  joint  principals  52 

several,  may  jointly  represent  the  same  principal 55,  58 

appointment  of 

method  of   59,  60 

to  execute  instruments  61,  62 

by    corporations    63 

to  sell  and  convey  interest  in  land   64 

by  parol   65 

doctrine  of  estoppel  on 67,  70 

evidences  of  70,  74 

cannot  ratify  his  own  act 82 

as  a  rule  cannot  delegate  authority   100,  103 

power  of,  to  appoint  sub-agent  103,  106 

extent  of  interest    Ill 

power  to  renounce  authority   118 

discharge  of   121 

renunciation   by    122 

death,  insanity  and  bankruptcy  of,  terminates  authority.  125,  128 

duty   of,   in  general    158 

forbidden  to  do  certain  things  167 

purpose    of    190 

how  sued   213 

APPOINTMENT  OF  AGENT— 

see  "Agent." 
ATTORNEY  AT  LAW— 

definition   of    20 

relation  to  client   274 


INDEX.  167 

[References   are  to  sections.] 

ATTORNEY  AT  LAW— Continued. 

how    appointed    275 

duration   of  relation    276 

implied  powers  of    277 

bound  to  loyalty  and  honor  278 

donlirrs  of,  must  be  fair  and  in  good  faith  279 

confidential  communications  privileged    280 

liability    to    client    281 

liability  to  third  person    282 

right  to  compensation  283,  284 

how  amount  determined   285 

reimbursement   and   indemnity   of    286 

lien    of    287 

AUCTIONEER— 

definition  of    21 

his  function    24 

how   authorized    2S8 

terms  of  sale  289 

implied  powers  of   290 

duties  of,  to  principal 291 

liabilities  of,  to  third  person   292 

compensation  and  lien  of   293 

liability  of  principal  for  acts  of 294 

AUTHORITY— 

to  act  as  agent    3 

created   by  law    4 

delegation  of  27,  34 

to  execute  instruments  under  seal    61,  62 

of  corporation  to  appoint   63 

required  by  statute  to  be  in  writing  64 

may  be  conferred   by  parol    65 

not  to  be  proved  by  agent's  admissions  70 

written    instrument   best   evidence   of    72,   73 

to  appoint  sub-agent    103 

coupled  with  an  interest  Ill  et.  seq. 

termination  of   121,  132 

express    133 

implied    134 

general    135,    139 

special     136,    144 

distinction   between,   and   instructions    138 

powers  incident  to  142,  150,  158 

construction  of, 

in  general   144,  149 

In  particular  150,   158 


168  INDEX. 

[References  are  to  sections.] 
AUTHORITY— Continued. 

to  sell  land  150,  151 

to  sell  personal  property   152,  153 

to  buy  154 

to  collect  or  receive  payment   155 

to    make   negotiable   paper    156 

to  manage  business  157 

how  executed, 

in  general    158 

execution  of,  excessive  or  defective    159 

written  instruments    160 

sealed   instruments    161 

negotiable   instruments    162 

other  similar  contracts   163 

parol    evidence   to    explain 164 

BANKRUPTCY— 

of  principal  or  agent,  effect  of  127 

BENEFITS— 

acceptance  of,  will  ratify    88 

BROKER— 

definition  of   22 

his  function    25 

how  appointed   295 

implied  powers  of  296,  297 

duties  to  principal 298 

acts  for  both  parties  299 

liability  to  third  persons 3  ;0 

compensation  of    301,   304 

reimbursement,  indemnity  and  lien  of 304 

CLIENT— 

relation   of  attorney   to    274 

duration  of  relation   276 

must  receive  loyalty  and  honor  from  attorney   278 

dealings  between  attorney  and   279 

has  privilege  of  confidential  communications  with  attorney.  280 

liability   of  attorney  to 281 

CLUBS,  SOCIETIES,  ETC.— 

as  principals , 54 

COLLUSION— 

defeats   notice    232 

between  agent  and  third  person    271 

COMPENSATION— 

cannot  be  recovered  by  agent  who  serves  two  principals 167 

the  right  to  have   215 

amount  of,   determined   216 


INDEX.  16S 

[Reference*  are  to  sections.] 

COMPENSATION— Continued. 

when   earned    217 

under  conditions    218  et    seq. 

right  of  professional  and  non-professional  agents  to 

of  attorney    2S3,   285 

of  auctioneer   293 

of   broker    304 

of  factor  310 

contingent    284 

CONSTRUCTION— 

necessity   for    Hi 

of  particular  powers  149  et   seq. 

CONTRACT— 

agency   based  on    1 

appointing    agent    12 

when,  of  agency  void  34 

Illegal  in  part   35 

enforcement  of  contract  of  agency   119 

presumed  for  definite  time  120 

execution  of  simple  contract  163  et   seq. 

when  agent  liable  on  197 

CORPORATIONS— 

may  be  principal   ' 36 

as    agents    49 

how  may  appoint  agent 63 

may  ratify  what  they  can  authorize  80 

CO-TENANTS— 

as    principals    53 

DAMAGES— 

see  "Duties  and  Liabilities." 

DELEGATION— 
see  "Sub-Agent." 

of  personal  duty,  etc 29 

of  authority  by  agent  100,  106 

of  power   includes   incidental   authority     to     effect     power 

granted     142 

of  authority  by  auctioneer   290 

of  authority  by  factor   306 

DESTRUCTION   OF  SUBJECT   MATTER— 

effect  of,  on  agency   130 

DISCLOSED  PRINCIPAL— 

see  "Principal,"  also  "Duties  and  Liabilities." 

DUTIES  OF  THE   AGENT  TO   THE  PRINCIPAL— 

in  general    153 

to  be  loyal  to  his  trust  166 


170  INDEX. 

[References  are  to  sections.] 
DUTIES  OF  AGENT  TO  PRINCIPAL— Continued. 

barred  from  some  acts 167,  168 

unloyal   act  voidable    169 

further   limitations    170 

usage   does   not   alter   rule    171 

must  obey  instructions 172  et  seq. 

good  faith — no  excuse   173 

in  what  form  of  action  liable  174 

sudden    emergency   as   excuse    175 

ambiguous    instructions    176 

effect  of  custom   177 

to  exercise  care  178 

special  skill  required  in  some  cases  179 

when  services  gratuitious  . 180 

liable  for  negligence 

in  loaning  money 181 

in  effecting  insurance   182 

in  collecting  183 

liable  for  defaults   of  correspondents    184 

to  account  for  money  and   property    185,   189 

DUTIES   AND   LIABILITIES    OF   THE    AGENT    TO   THIRD 
PERSONS— 

in  general   .' 190 

in  contract  without  authority  191,  199 

when  no  responsible  principal  199,  201 

where  agent  pledges  his  personal  responsibility 201  et.  seq. 

to  disclose  principal    202,  203 

when  principal  foreign   £04 

when  principal  is  known  205 

when  agent  has  obtained  money  from  third  person  ...207,  208 

when  agent  has  received  money  from  third  person 209 

in  cases  of  tort  210,  212 

non-feasance — misfeasance    211 

trespass — conversion    212 

how    sued    213 

DUTIES     AND     LIABILITIES     OF     THE     PRINCIPAL     TO 
THE  AGENT— 

to  pay  compensation  215 

rules   regulating  payment    216,   230 

when  compensation  deemed  to  be  earned  217,  221 

where  authority  rightfully  revoked  221 

when  authority  terminated  by  operation  of  law 222 

where  agent  abandons  his  undertaking   223 

where  agent  acted  for  two  principals  224 

where  agent  violated  his  trust  225 


INDEX.  171 

[ReferenceB  are  to  sections.] 
DUTIES  OF  PRINCIPAL  TO  AGENT— Continued. 

rules  where  agency  unlawful 226 

where   extra   duties    required    227 

where   agent   holds   over    228 

recoupment  by  principal   229 

reimbursement   and    indemnity    of   agent    230,  333 

DUTIES     AND     LIABILITIES     OF     THE     PRINCIPAL     TO 
THIRD  PERSONS— 

liability  for  agent's  contracts   235,  214 

liability  of  disclosed  principal 238,  244 

liability    of   undisclosed    principal    238,  211 

responsibility   for   agent's   statements    244,  246 

responsibility  for  matters  brought  to  knowledge  of  agent  246,  252 

liability  for  agent's  torts  and  crimes   252,  260 

DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE 
AGENT— 
in  contract, 

usually  no  right  of  action  261 

exception — sealed  instruments  or  negotiable  instruments 

made  in  agents'  name  262 

when  principal  undisclosed   263 

in  tort   265 

DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE 
PRINCIPAL— 

in   contract    267,    271 

what  contracts  principal  may  enforce  267 

what  defences   open    268 

right  to  follow  and  recover  money  or  property   269 

right  to  rescind   dealings  where  agent  secretly  in  em- 
ployment  of  other  party    270 

In   tort    271,   273 

right  to  recover  damages  for  collusion  271 

recovery  for  enticing  agent  away,  disabling  him,  etc...  272 
ESTOPPEL— 

doctrine  of,  as  applied  to  agents   67 

applied   to   ratification   by   conduct    87 

may  effect  determination  of  authority   138 

EVIDENCE— 

of  authority,  see  "Authority." 

necessity   for    145 

parol,  to   explain   164 

EXECUTION— 

defective  or  excessive   157 

of  written  instrument  'l60 


172  INDEX. 

[Refereaces  are  to  sections.] 
EXECUTION— Continued. 

of  sealed   instruments    161 

of  negotiable  instruments    162 

FACTOR— 

definition    23 

his   function    26 

how   appointed    305 

implied    powers    of    306 

duties  of,  to  principal   307,  310 

compensation,  reimbursement  and  lien   310 

right  to  sue  311 

FORGERY— 

as   to    ratification    of 78 

GENERAL  AGENCY— 

definition    14 

number   possible    16 

how  proved   18 

ILLEGAL  ACTS— 

agency  cannot  be  created  to  perform  28 

cannot  be  ratified  77 

IMPLIED   POWER— 

of  agent   142,  150  et    seq. 

of  attorney    277 

of  auctioneer   290 

of   broker    296,  297 

of   factor    306 

INCAPACITY— 

natural    or   legal 39 

of   insane  persons    40 

of    infants     41,  44 

of  married  women   42 

more  important  in  principal  than  in  agent 43 

arising  from  adverse  interest  51 

of  agent  to  serve  two  principals   167 

INDEMNITY— 

of  agent   231,  232 

of  attorney-at-law   286 

of    broker    307 

"INDEPENDENT  CONTRACTOR"— 

how  compares   with   agent    8 

INFANTS— 

as   principals    41 

as  agents   44 

how  authorized    45 

may  ratify  what  they  can  authorize 81 


INDEX.  173 

[Reference*  are  to  flections.] 

INSANE  PERSON— 

cannot    be    principal    40 

INSANITY— 

of  principal  or  agent  terminates   126 

JOINT  AGENTS— 

discussion    of    55,    58 

JOINT   PRINCIPALS— 

discussion    of    52,    55 

LEASE— 

differs    from    agency 11 

LIABILITY— 

of  various  parties,  see  "Duties  and  Liabilities." 

LIEN— 

of  attorney  287 

of  auctioneer  293 

of  broker  3°4 

of  factor  310 

MANAGE  BUSINESS— 

authority  to   157 

MARRIAGE    OF    PRINCIPAL— 

when  agency  is  affected  by  128 

MARRIED  WOMEN— 

as   principals    42 

as   agents    46,    47 

may  ratify  what  they  can  authorize  SI 

NEGOTIABLE  PAPER— 

execution  of  authority  to  make  II 

execution  of   162 

parol  evidence  in  case  of  1C4 

NOTICE— 

duty  of  agent  to  give   189 

to  agent  is   notice  to   principal    246 

defeated  by  collusion  between  agent  and  third  person   247 

PAROL  EVIDENCE— 

to  explain  authority   164 

;  ARTNERSHIPS— 

may   be   principal    36 

as    agent    50,    56 

may  ratify  what  they  can  authorize  SO 

PERSONAL  PROPERTY— 

authority  to   sell    152 

what  included    153 

PRINCIPAL— 

duties  and  liabilities,  see  "Duties  and  Liabilities." 

•when  assent  of,  necessary  *3,  4 


1 


174  INDEX. 

[References  are  to  sections.] 

PRINCIPALr— Continued. 

number  of  agents  possible  15,  16 

validity  as  between,  and  agent 34 

who  may   be    37,   38 

incapacity    to    be    39,    43 

natural  or  legal  39 

insane  persons    40 

infants     41 

married    women    42 

more  competence  required  than  in  agent   43 

may  be  joint    52 

partners,  co-tenants,  etc.,   as   53 

clubs,  societies,  etc.,  as  54 

may  be  represented  by  joint  agents  55,  58 

usually  appoints  agent   59 

responsible  for  authority  of  agent  70 

effect  of  ratification  as  between,  and  others 94  et  seq. 

may  authorize  agent  to  employ  other  agents   99 

power  of,  to  revoke  agency   Ill 

must  give  notice  of  revocation   117 

death  of,  terminates  authority    124 

insanity  of,  terminates  authority  126 

bankruptcy  of,  terminates  authority   127 

marriage   of,   terminates   authority    128 

appearance  given  to  authority  by,  controls  137 

distinction  between  authority  and  instruction  of 138 

duty    of   agent   to  disclose    202 

agent   of   foreign    204 

presumption  that,  to  be  bound  205 

liable  for  acts  of  auctioneer  294 

PRIVILEGED   COMMUNICATIONS— 

between    attorney    and    client    280 

PUBLIC  POLICY— 

agencies  for  purposes  opposed  to,  void 28 

RATIFICATION— 

definition    of    75 

what  acts  subject  to  76,  78 

of    forgery    78 

by  whom  may  be  made   79,  83 

conditions   of    83 

what   amounts   to    f 84,   92 

by    instrument   under   seal    85 

by  authority  subsequently  conferred  86 

by   conduct    SV 

by   accepting   benefits    88 


INDEX.  175 

[References  are  to  sections.) 
RATIFICATION— Continued. 

by  bringing  suit  89 

by   acquiescence    90,  91 

effect  of, 

in    general    92,  93 

as  between   principal  and   agent   94 

as  to  rights  of  third  party  against  principal 95 

as  to  rights  of  principal  against  third  party 96 

in   contract    97 

in    tort    98 

may  effect  determination  of  authority  138 

RECOUPMENT— 

principal  may  recoup  damages  caused  by  agent's  act 229 

REIMBURSEMENT— 

of    agent    230 

of  attorney-at-law  286 

of  broker  304 

of  factor  310 

RENUNCIATION— 

by  agent    118 

when  justifiable   122 

REPRESENTATIONS  OF  AGENT— 

when  principal  bound  by  244,  245 

REVOCATION— 

compensation,  in  case,  see  "Compensation." 

of   ratification    93 

by  principal    HI 

not  when  coupled  with  interest  113,  116 

distinction  between  "power"  and  "right"  of 115 

need  not  be  express  116 

notice  of   117 

SALE— 

distinguished   from   agency    1° 

terms    of    289 

SEALED  INSTRUMENTS— 

authority    to    execute    61 

ratification  of  85 

execution    of    161 

who  bound  in  164 

SERVANT— 

compared  with  agent  5-8 

SIMPLE  CONTRACT— 

how  executed   163 


176  INDEX 

[References  are  to  sections.J 
SOCIETIES,  CLUBS,  ETC.— 

as   principals    &* 

SPECIAL.  AGENCY— 

14 
definition    • 

number  of  special  agents   possible   16 

how  to  be  proved  1® 

SUB-AGENT— 

see  "Delegation." 

when  appointment  justifiable  103 

relation  of  sub-agent  to  principal  104,  105 

termination  of  authority  of  agent  terminates  power  of 131 

SUBJECT-MATTER— 

destruction  of,  terminates  agency  130 

termination  of  power  over   131 

TERMINATION  OF  AGENCY- 
by  act  of  parties, 

1.  original  agreement  108 

2.  subsequent  act  of  parties, 

by  mutual  consent  HO 

revocation  by  principal  HI,  118 

renunciation   by   agent    118,   123 

by  operation  of  law, 

death     124,    125 

insanity    128 

bankruptcy    127 

marriage 128 

war    1^9 

destruction  of  subject  matter  130 

termination  of  power  over  subject-matter 131 

of  sub-agents   131 

TORT— 

may  be  ratified   98 

see  "Duties  and  Liabilities." 

TRUST— 

differs  from  agency   9 

not  necessarily  a  contract  relation  9 

UNDISCLOSED  PRINCIPAL— 

liable  when  discovered    239 

his  exceptions    240 

agent  also  liable  243 

liable  in  tort,  see  "Duties  and  Liabilities." 

UNIVERSAL  AGENCY— 

definition    14 

number  of  universal  agents  possible  15 


INDEX.  177 

[B«forenc«t  irt  to  »»ctlon».] 

USAGE— 

contributes  to  determine  authority   188 

WAR— 

effect  of,  on  agency   128 

WITNESS— 

when  agent  may  be  called  as  71 

WRITTEN  INSTRUMENTS— 

execution  of ISO 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  684  088    8 


f^ 


I 

e 

( 


^ 

^ 


[ 


